An Insight into International Humanitarian Law: Protection of “The Brave Hearts”

An Insight into International Humanitarian Law: Protection of “The Brave Hearts”

Author: Akashmika Jena, University Law College, Utkal University, Bhubaneswar

Abstract

The coveted International Humanitarian Law is otherwise recognized as the Law of War. The sole objective of the International Humanitarian Law grounded on humanitarian motives seeks towards limiting the effects of armed conflict. As per the famous philosopher Hugo Gratius in his legal masterpiece De jure belli ac pacis on the Law of War and Peace stated that the conquerors had the right to subjugate their enemies. Similarly another French philosopher namely Montesquie in his L’Esprit des lois on ( The Spirit of Laws) expressed that the sole just thing in the war was that the abductor had to prevent the prisoner from any harm. Likewise, the International Humanitarian Law lays down certain provisions seeking towards regulating the conduct of war alongside protecting the individuals no longer a party to a hostility. Moreover, it is prudent to take into consideration that the International Humanitarian Law is Les specialize which states that the same originated to administer particular subject matters. The respective article provides a detailed analysis of the Law of War. The author through this article states the rights and privileges concerning the protection of the POWs.

Introduction

The International Humanitarian Law or IHL also recognized as the Law of War plays a prudent role in regulating the conducting of war. The Law of War is based on the following principles namely – a) Protection of persons no longer participating in hostilities. b) The rights of the concerned parties to prefer desired approaches and means of warfare subjected to an armed conflict. The Law of War monitors all the activities carried forth during an armed conflict and similar circumstances. Moreover the same is explicit and is applicable regardless of the body of law seeking to regulate the resort towards armed force. The structure of the same is based on the outline of  Jus ad bellum and is preserved in the UN Charter of 1945. Once there is an armed conflict, IHL applies to all the parties, whether or not a party was legally justified in using force under Jus ad bellum principles.

Hence there exist two modus operandi followed by the International Humanitarian Law as explained further.

Prisoners of War

The provisions for the protection and safeguarding of the Prisoners of War were first laid out in the Geneva Convention of 1949. However, the same was further polished in the Geneva Convention III of 1949 subjected to the experiences from the Second World War alongside the Additional Protocol I of 1977.

Under the purview of International Humanitarian Law, the repute of Prisoner of War is applicable following the International Armed Conflict. The Prisoners of War or POWs in usual are the affiliates of the armed force of either of the concerned parties.

 The objectives of the Geneva Convention III of 1949 states that the POWs are devoid of being prosecuted for partaking in armed hostilities. Them undergoing detention is not considered as a punishment rather it aims at preventing subsequent participation in the conflict. However, the POWs following the termination of ongoing must be duly released and departed without any delay. Correspondingly, the restraining power has the right to prosecute the POWs for probable crimes excluding the acts considered as lawful under the International Humanitarian Law.

 The POWs under International Humanitarian Law under Article 4 of 1949, Geneva Convention along with the provision of Article 44 are subjected to protection as enshrined in the Additional Protocol I. The POWs are accorded as such to ensure they’re acknowledging the fact they are acting upon the interest of their nation, thus having the right to be protected. Article 143 of the third Geneva Convention of 1949 asserts that the Prisoners of War or POWs shall be treated humanely ensuring adequate housing, delivery of food, medical care so on, and so forth. Further provisions aim at establishing objectives on the grounds of labor, recreation, mode of conduct towards the member’s party to an armed conflict alongside militias and armed forces formed by corps. 

  1. Being a party to the conflict members belonging to the militias or other corps  on condition that such groups:
  2. are subjected to accountable command;
  3. having a specific symbol identifiable from a distance openly carrying arms and lastly ;
  4. conducting operations in compliance with the law of armed conflict

c) civilians accompanying the armed forces subjected to being accredited by the armed force being accompanied by them.

d) members of crews of the merchant marine and civilian aircraft of a party to the conflict who do not benefit from more favorable treatment under international law;

e) participants involved in a levée en masse

f) The martial wounded followed by shipwrecked and falling into the hands of the

General Protection of POWs

As per the principles of the International Humanitarian Law under the Customary Rule 106[1] states that – The soldiers must separate themselves from the civilian populace during engaging in a military battle or involved in an armed operation aiming towards an attack. And failing at the same would devoid them from the Prisoners of War status.

Moreover, it is of prudent importance to consider that the POWs remained in the hands of the adversary power and not the individual capturing them. They must be treated humanely at all times. An unjust act or omission showcased by the Any unlawful act or omission by the Impeding power leading to death or severely endangering the life and well being of the POW while in the custody being subjected to physical, medical torment and mutilation not authorized or justified by the medical authorities and hospitals is forbidden and the same is considered a breach of the principles of the International Humanitarian Law. Moreover, actions of retaliation against the POWs are strictly prohibited.[2]

The POWs at all times are permitted to respect their respective person(s) alongside women who are also entitled to the same treatment as conceded to men. The POWs are entitled to civil capacity during the time of their captivity.[3]

The States involved in detaining the Prisoners of War are obligated to provide the captives with the essentials concerning their health and well being free of cost.[4] Regardless of distinction on the grounds of race, religious belief, nationality the POWs are bound to be treated equally.[5]

Exclusion of persons from Prisoner of War status

The following individuals are unambiguously exempted from the status of POW in the law of Armed conflict.

  • Involved in reconnaissance the associates of the armed forces belonging to a faction subjected to the power of the opponent party are subject to exclusion.
  • Mercenaries are also exempted from the status of POW in the law of Armed Conflict.

In the proclaimed matter of Osman v. Prosecutor[6] claiming to be members of the Indonesian armed force pleaded the protection prescribed in the 1945 Geneva Convention subjected to the Treatment of POWs of 1949.  Upon due assessment, it was held that even upon being associated with the Indonesian armed force the appellants were devoid of availing protection provided to POWs as during the act of sabotaging while placing the explosives they were dressed as civilians even at the time of the arrest. […]

Explicit provision on the Protection of Imprisoned Prisoners of War

1. Each respective prisoner of war upon interrogation is liable to provide professional information such as their first name, surname, rank, DOB, regiment, a mental condition so and so forth. And if unable to do the same shall be passed on to the medical service. Any form of physical or mental torment or torture on the Prisoners of War is strictly prohibited. Similarly, the captive refusing to answer the questions shall not be threatened or subjected to any hostile or unjust treatment of any kind.[7]

2. The officers and prisoners belonging to the same status are to be treated following their respective ages and rank.[8] 

3. Personal protective equipment of the Prisoners of War such as helmets and gas masks shall remain in the ownership of the same.[9]

4. Prisoner of War may be released partly or completely subjected to bail or a pledge, as rightfully mentioned in the Law of War. The POWs are not subjected to detention in areas of exposed fire in the purview of a battle region nor can be used as immunity from armed manoeuvers.

In the case of  United States v. Noriega (1997)[10] ,Manuel Noriega being the head of a state involved in several cases of cocaine trafficking on appealed for dismissal of his indictment owing to his status. It was ruled that a criminal defendant irrespective of an extradition treaty being abducted to the United States is devoid of the right of defense under the United State’s court and must undergo trial in the Federal District Court for violating the Criminal Law of the United States.

In the recent case of Indian Air Force’s Wing Commander Abhinandan Varthaman, the status of Prisoner of War was in question. Applying to cases of declared war or plausible armed conflict amidst two or more constricting parties under the purview of the Geneva Convention, Article 2[11] regardless of the state of war not being acknowledged by one of the parties.Hence, as per the aforesaid notion, the said case can be applied subjected to the principles of the Geneva Convention of 1945.

Conclusion

“We sleep peaceably in our beds at night only because rough men stand ready to do violence on our behalf.”- George Orwell

Owing to the aforesaid notion we must safeguard our Brave Hearts ensuring our protection. And seeking to protect the Prisoners of War as well as limiting the consequences of Armed conflicts the Law of War aims to do the same.


[1] https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule106

[2] Article 13 of the Geneva Convention III of 1949

[3] Article 14 of the Geneva Convention III of 1949

[4] Article 15 of the Geneva Convention III of 1949

[5] Article 15 of the Geneva Convention III of 1949

[6] Osman v. Prosecutor, Law Reports, vol. 1, 1969, Appeal Cases, pp. 430-455 (P.C.)]

[7] Article 17 of the Geneva Convention III

[8] Article 44 of the Geneva Convention III

[9] Article 8 of the Geneva Convention III

[10] United States v. Noriega 117 F.3d 1206 (11th Cir. 1997)

[11] of the Geneva Convention, 1945

http://www.rulac.org/classification/international-armed-conflict

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