Protection of POWs and civilians Part 1 Protection of POWs and civilians

Protection of Prisoners Of War (POWs) and civilians University of Oslo 6 October 2008 Mads Harlem, Head of International Humanitarian Law Unit NORWEGIAN RED CROSS 2

Outline of Programme Distinction between civilians and combatants Persons entitled to protection under IHL in general Focus on persons deprived of their liberty Focus on Civilians in Occuppied Territory Case Studies 3

Distinction Between Civilians and Combatants Do not participate in the hostilities Behaviour Participate in the hostilities Do not have the right to take up arms Rights Have right to kill (within the limits of IHL) Can be pursued and punished for taking up arms Responsibilities Cannot be pursued for using force in line with IHL Must not be attacked Protection against Attack Can be attacked; are military objectives Must be respected and humanity Treatment by the Enemy In the case of capture, benefit from POW status 4

Persons Entitled to Protection under IHL IACs: different categories of "protected persons" wounded, sick and shipwrecked medical and religious personnel prisoners of war civilians in the power of the enemy NIACs: "persons taking no active part in the hostilities" (Common Art. 3); "all persons who do not take a direct part or who have ceased to take part in hostilities" (Art 4.1, AP II) 5

Persons Deprived of Their Liberty IAC captured combatants = prisoners of war NIAC upon capture, people participating in the hostilities are not entitled to POW status

Persons Deprived of Their Liberty - IAC Prisoners of War: Scope two conditions: fall within the categories of persons specifically listed in Art. 4, GC III fall in the power of the enemy 7

Categories of Persons = Prisoners of War Members of the armed forces Members of other militias and volunteer corps belonging to a party to the conflict provided they: (1) are under responsible command; (2) wear a fixed distinctive sign; (3) carry arms openly; and (4) respect IHL Authorised persons who accompany the armed forces Civilian members of military aircraft crews War correspondents Supply contractors Members of labor units or of services responsible for the welfare of the armed forces Members of merchant marine crews and civil aircraft crews of the parties to the conflict Levée en masse 8

Loss of Combatant/Prisoner of War Status in general, violations of IHL do not deprive combatant/POW of that status Combatants must carry arms openly during each military engagement and while visible to the adversary when engaged in a military deployment prior to the launching of an attack combatant who falls into the power of an adverse party while failing to do so forfeits right to POW status, but shall receive equivalent protections combatant who falls into the power of an adverse party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit right to be combatant/POW by virtue of prior activities 9

Determination of Prisoner of War Status Presumption of Prisoner of War Status "Should any doubt arise as to the status of persons who have committed belligerent acts and have fallen into the hands of the enemy, such persons will enjoy the protection of the third Geneva Convention until such time as their status has been determined by a competent tribunal." Art. 5, GC III; see also Art. 45, AP I 10

Exceptions: Spies – act under false pretences or deliberately in a clandestine manner; caught in the act do not have the right to POW status (Art. 46, AP I) Mercenaries – specially recruited to fight in an armed conflict, motivated by the desire for private gain (material compensation superior to that given to combatants of the regular armed forces) do not have the right to be a combatant or a POW (Art 47, AP I) 11

Treatment of Prisoners of War protection and humane treatment (Arts. 12 – 16, GC III) questioning (Art. 17, GC III) evacuation (Arts. 19 and 20, GC III) conditions of detention (Arts. 21 – 48, GC III) labor (Arts. 49 – 57, GC III) relations with the outside world (Arts. 69 – 77, GC III) relations with the authorities (Arts. 78 – 109, GC III) right for ICRC to visit (Art. 126, GC III) 12

End of Captivity repatriation for medical reasons during the conflict (Arts. 109 – 117, GC III) release and repatriation without delay after the end of active hostilities (Arts. 118 – 119, GC III) 13

Persons deprived of Their Liberty: NIACs Scope: all persons detained in relation with NIAC no POW status Humane treatment – minimum standards can be pursued for the simple fact of having taken up arms…even if IHL respected At the end of hostilities, authorities “shall endeavour to grant broadest possible amnesty to persons who have participated in armed conflict or those deprived of their liberty for reasons related to armed conflict (Art. 6(5), AP II) 14

Part 2 Occupation

Occupation The de facto situation determines whether there is occupation: Common article 2: … the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, …. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, …

Definition of Occupation: Art. 42, Hague reg.: “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Common Art.2: “..the Conventions apply to all cases of partial or total occupation of the territory of a High Contracting party, even if the occupation meets with no armed resistance.”

Three criteria: Exercise of authority or effective control The occupied government is incapable of exercising its authority The occupying power is capable of exercising such authority Over the whole or parts of the territory of another state Irrelevant if the occupation was met with armed opposition

Applicable international law Articles 42 to 56 of the Hague reg. Articles 27 to 34 and 47 to 78 of GC IV Customary law Specific rules laid down by international bodies such as the Security Council

The Law in Occupied Territory: Art. 43, Hague Reg.: The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

Rights of the Occupying Power can change the laws and regulations in force to the extent necessary (Art. 64, GC IV): to permit it to fulfill its obligations under GC IV to enable it to administer the territory for its own security can hand over those accused of violating such laws and regulations to its own military courts in the occupied territory (Art. 66, GC IV) can intern the civilian population "for imperative reasons of security" (Art. 78, GC IV) can force the civilian population to work…but only in limited circumstances (Art. 51, GC IV) In general, local penal laws, local courts in force Decisions re: internment made according to a regular procedure and in accordance with the provisions of GC IV. Procedure shall include the right of appeal, with periodic review every six months (Art. 78, GC IV; SEE ALSO Art. 43, GC IV) 21

Duties of the Occupying Power cannot carry out deportations, transfers, or forced evacuations (Art. 49, GC IV) cannot transfer part of its own civilian population into the territory (Art. 49, GC IV) cannot force civilians to serve in its armed forces (Art. 51, GC IV) must ensure the food and medical supplies of the population (Art. 55, GC IV) must facilitate the delivery of humanitarian assistance (Art. 59, GC IV) must maintain medical services (Art. 56, GC IV) Occupying power can evacuate a given area if the security of the population or imperative military necessity so require; must be transferred back as soon as the hostilities have ceased (Art. 49, GC IV) Violations of Art. 49, GC IV = grave breaches Accept ICRC visits, Art. 143, GC IV Only if hostile activity = direct participation in hostilities can occupier respond militarily as governed by rules on conduct of hostilities 22

Internment of protected persons Occupying powers can intern protected persons– GC IV, Article 79: Due to security reasons (Art.41, 42, 68) Must review at leat twice a year (court or administrative board) (Art. 43) Saramati Al Jeddah as mentioned, in certain circumstances, protected civilians may be interned; person may also voluntarily demand internment (e.g., to seek protection from a hostile environment) (Art. 42, GC IV); Person who has been interned is entitled to have action reconsidered by appropriate court or administrative board (so not automatic, but on behest of protected person) and if internment is maintained, the court or administrative shall review this decision at least 2 X per year. Art. 43, GC IV. to prevent abuses of power that occurred during WWII (camps in central, eastern europe and the far east), GC IV contains a particularly well-developed section on the internment of civilians (Arts.. 79 – 135) provisions cover the legal status of internees and prescribe their treatment – differences arising from the nature of internees as civilians are taken into account – clear that internment is not punishment – but a measure ordered for security reasons only. Work? Art. 85, GC IV (accommodation and hygiene); in general, cannot be employed as workers unless they so desire (Art. 95, GC IV) Three exceptions: (1) doctors, dentists and other medical personnel on behalf of fellow internees; internees for administrative and maintenance work in places of internment (kitchens, other domestic tasks); and (3)can be required to undertake duties connected with the protection of internees against aerial bombardment or other war risks release as soon as possible after close of hostilities unless penal proceedings pending or until completion of penalty (Art 133, GC IV). 23

Conditions of internment camps should not be set up in areas « particularly exposed to the dangers of war » (Art. 83, GC IV) internees accomodated and administered separately from POWs and other detainees (Art. 84, GC IV) conditions of internment (Arts. 83 - 98, GC IV) administration and discipline (Arts. 99 - 104, GC IV) relations with the outside world (Arts. 105 - 116, GC IV) penal and disciplinary sanctions (Art. 117 - 126, GC IV) transfers effected humanely (Art. 127, GC IV) released as soon as reasons for internment no longer exist (Art. 132, GC IV), and in any event, as soon as possible after the close of hostilities (Art. 133, GC IV)

Iraq and Kosovo Iraq: Armed attack by the US and UK followed by occupation by the US and the UK SCR 1483 Kosovo: Armed attack by the NATO followed by something which looks a lot like occupation by the UN SCR 1244

SCR 1483 (2003) Establishes US and UK as occupying powers (“the Authority”) Establishes that other states working with the Authority do not therefore become occupying powers Calls upon the Authority to promote the welfare of the Iraqi people through effective administration of the territory, including in particular working towards restoration of security and stability and creation of democratic conditions

SCR 1244 (1999) Establishes the international civil presence (UNMIK) and gives it mandate to perform basic civilian administrative functions where and as long as required Authorises Member States to establish security presence (KFOR) and gives it mandate to use all necessary means to fulfil the mandate