Author Pushpinder Kaur, a Student of Lloyd School of Law
Introduction: During the time of international armed conflict among the nations, fighters who fall into the hands of their enemy nation, such fighters are known as prisoners of war. These captured soldiers were either executed or enslaved in the early times but now a days the status of prisoners of war has been drastically changed the passage of time. In the 19th century efforts were made to improve the treatment of these prisoners. Then in 1949, Third Geneva Convention related to the treatment of prisoners of war, was made. Today, every nation is party to this convention.
Third Geneva convention on prisoners of war, 1949: In 1929, states adopted a Geneva convention on prisoners of war, to protect them during first world war. The Geneva convention of 1929 proved to be effective in protecting captured soldiers thus, new Geneva convention was formed to strengthen that protection and make it universal. This convention of 1949 specifically aimed to protect POWs. It was first multilateral treaty and contains 143 articles and 46 more than its predecessor.
Article 4 of this convention explains that who can be called as prisoners of war. Article 12 to 16 of the convention talks about the protection of prisoners of war. Article 12 explains that the power who detains such prisoners is responsible for the treatment given to them. Article 13 says that prisoners of war must be given humane treatment. Any unlawful act or omission by the detaining power which can cause death or endangers the health of prisoner seriously, such act or omission is prohibited and it will be regarded as serious breach of the convention. No prisoner can be subjected to any physical mutilation or to medical or scientific experiments of any kind which are not justified by medical or dental hospital. Prisoners must be protected from acts of violence, insults and public curiosity. Article 14 of the conventions provides that prisoners of war should be respected and cannot be discriminated due to their sex, women shall be given favorable treatment as granted to men. Article 15 provides maintenance and medical attention to prisoners by the detaining power. Article 16 gives equality of treatment to prisoners by detaining power, without any discrimination based on race, nationality, religious belief or others.
Other laws related to the protection of prisoners of war: there are several significant case laws and international conventions that pertain to the treatment of prisoners of war (POWs). These legal instruments establish the rights and protections afforded to individuals captured during armed conflicts. Here are some notable examples:
- Geneva conventions (1949): The Geneva convention consist of four treaties and three additional protocols that establish the standards of international law for the humanitarian treatment of war. Specifically, the Third Geneva Convention (1949) provides protections for POWs. The conventions have been ratified by the majority of countries worldwide and are considered customary international law.
- Common Article 3 of the Geneva Conventions: This provision applies to armed conflicts not of an international character. It outlines basic protections for individuals who are not taking part in hostilities, including captured combatants.
- Additional Protocol I (1977) to the Geneva Conventions: This protocol expands upon the protections afforded to prisoners of war and provides more detailed guidelines for their treatment.
- International Criminal Tribunal for the Former Yugoslavia (ICTY): While not a specific case law, the ICTY has addressed issues related to the treatment of prisoners of war in its jurisprudence. For example, in the case of Tadic v. Prosecutor (1995), the tribunal discussed the definition of POWs under international humanitarian law.
- International Criminal Court (ICC): The ICC has jurisdiction over war crimes, including those related to the treatment of prisoners of war. Its jurisprudence may provide additional insights into the legal framework surrounding POWs.
- Customary International Law: In addition to treaty law, customary international law also plays a significant role in shaping the treatment of prisoners of war. Customary law is derived from state practice and opinio juris (a sense of legal obligation).
- Hague Conventions (1899 and 1907): While not specifically focused on prisoners of war, the Hague Conventions include provisions related to the treatment of captured combatants and civilians.
These are just a few examples of the legal framework governing the treatment of prisoners of war. The interpretation and application of these laws may vary depending on the specific circumstances and the jurisdiction of relevant courts or tribunals.
Instead of these various laws, the condition of the prisoners is not much good. They are facing problems like torture, sexual violence, killing etc. The current conflict between Russia and Ukraine highlights such problems that are being faced by POWs.
Application of the convention in the present times: In the annals of history, the tales of prisoners of war (POWs) stand as stark reminders of the human cost of conflict. These individuals, caught in the crossfire of war, endure unimaginable hardships, facing physical and psychological challenges that test the limits of human resilience. While the Geneva Conventions and other international agreements aim to safeguard their rights, the reality often paints a grim picture of suffering and struggle.
In the Russian Ukraine conflict, treatment given by the detaining powers to prisoners of the war, is stated in the report of united nations human rights office of the high commissioner (24 February 2022 to 23 February 2023).
The treatment given to prisoners of war in the hands of Russian federation:
According to the report stated, Russian armed forces upon their capture and during evacuation, violated international humanitarian law and international human rights law, tortured or other ill treatment, evacuation in inhumane conditions, denied medical attention which sometimes leading to death, denied food, water, etc. OHCHR documented these violations through the interviews with 203 Ukrainian POWs, who were released. Of those interviewed, 136 Ukrainian POWs fell into the hands of Russian federation and they stated that Russian soldiers treated them with respect, protected the from attempts to humiliate, threaten or beat them.
OHCHR also analyzed various videos via social media which shows a member of Russian armed forces kicking the head of a man of Ukrainian armed forces, cutting his testicles with knife and shooting him dead. It has also analyzed the amount of torture, including sexual violence, killing etc.
Treatment of prisoners of war in the hands of Ukraine:
OHCHR has conducted some confidential interviews with 229 prisoners of war from Russian armed forces. Out of these 229 POWs, 113 prisoners reported torture and other ill treatment. OHCHR analyzed videos that were publicly available, to be authentic, and shows torture of Russian POWs by Ukrainian armed forces. In one of the videos, the members of Ukrainian armed forces were shooting the legs of three captured Russian soldiers and were kicking the wounded soldiers who were lying on the ground and also, they were threatening them that they will execute them and pointing guns on them.
Measures to improve the conditions of POWs: Improving the conditions of prisoners of war (POWs) involves a multi-faceted approach that addresses their physical, mental, and legal well-being. Here are several steps that can be taken to improve their conditions:
- Adherence to International Law: Ensure strict adherence to international humanitarian law, including the Geneva Conventions, which outline the rights and protections afforded to prisoners of war.
- Protection from Abuse: Guarantee protection from torture, cruel, inhuman, or degrading treatment. Establish mechanisms for reporting and investigating any allegations of mistreatment.
- Legal Rights and Due Process: Ensure that prisoners have access to legal representation and are afforded due process rights, including the right to a fair trial. This includes regular review of their status to determine whether they continue to meet the criteria for POW status.
- Respect for Human Dignity: Treat prisoners with dignity and respect their inherent human rights regardless of the circumstances of their capture or the nature of the conflict.
Implementing these steps requires cooperation among governments, international organizations, humanitarian agencies, and armed groups involved in conflicts. It also necessitates a commitment to upholding humanitarian principles and the rule of law, even in the midst of armed conflict.
Conclusion: The treatment of POWs varies widely depending on the prevailing attitudes of the captor nation and the specific circumstances of the conflict. While some are treated with relative decency in accordance with international law, others face torture, abuse, and even death at the hands of their captors. The plight of POWs highlights the urgent need for continued advocacy and enforcement of humanitarian principles in times of war.
Moreover, the repatriation and rehabilitation of POWs pose significant challenges for both the individuals and their home countries. Reintegrating into civilian life after experiencing the horrors of war requires extensive support networks and specialized care. Many struggles with post-traumatic stress disorder (PTSD), physical disabilities, and profound feelings of alienation upon their return.
As we reflect on the sacrifice and resilience of prisoners of war, it is incumbent upon us to honour their memory and uphold their rights. Governments, humanitarian organizations, and individuals alike must remain vigilant in safeguarding the dignity and well-being of those who have endured the brutality of captivity. By recognizing their humanity and acknowledging their suffering, we pay tribute to their courage and fortitude in the face of unimaginable adversity. In a world plagued by conflict and division, the stories of prisoners of war serve as potent reminders of our shared humanity. They remind us that even in the darkest of times, the light of hope can still shine through, illuminating the path towards a more peaceful and just world for all.
