This article is written by Prateep Sarkar, a student of Aligarh Muslim University.
The 21-century world has become the ‘Ground Zero’ for the barbaric and inhumane acts of different military and individual groups which are a clear violation of the cherished principles of Human Rights. There are various basic rights which are guaranteed to all human beings for the sake of being a human and those rights are inalienable and indivisible, the rights which are of utmost necessity for a human to live a dignified and respectable life, known as Human Rights. It is said that Human rights are rights inherent to all human beings, whatever their nationality, place of residence, sex, nation or ethnic origin, colour, religion, language, or any other status. Everyone is equally entitled to human rights without discrimination. These rights are all interrelated, interdependent and indivisible.[1] Human rights are norms that help to protect all humans anywhere in the world from severe political, legal, and social abuses. Human rights include the right to freedom of religion, the right to equality, the right to life and liberty, the right to a fair trial when charged with a crime, the right not to be tortured, and the right to engage in political activity. At national and international level these rights can be witnessed in law and morality both. No matter how good or bad a person is or in what condition and what place he is in, he cannot be deprived of the fundamental Human Rights. These inalienable and indivisible rights extend from a comfortable bed to the dark gallows and from lords of the world to the captives of war. International humanitarian laws from the very beginning have shown a great interest in safeguarding the rights of Prisoners of War (hereafter ‘POWs’). In last decade we have witnessed a barbaric and inhumane treatment to the POWs whether by the US army in Guantanamo Bay, IS forces in Iraq & Syria or by Boko Haram in Nigeria. Every now and then, we read and hear about the spine chilling acts of the militants groups like IS and Boko Haram groups which include genocides, mass killings, massacre of men, women and prisoners of war. For instance, it was reported few months back that ISIS paraded around 250 captured soldiers through the desert and shot them dead.[2]
Meaning and concept of POW
Before making an in depth analysis regarding the safeguards provided to POW’s under international and Islamic laws we must first of all have a brief idea regarding certain important terms relating to the subject.
WAR
Learned Jurists and authors have given their own perception of the term. ‘Professor Oppenheim defined war as “a contention between two or more States through their armed forces in the process of trying to overpower each other and imposing such conditions of peace as the victor pleases”. Further the learned American jurist Professor Westlake has defined the term as “the state or condition of Governments contending by force”. The third definition of war as pointed out by Professor Schwarzenberger follows: “the Powers are in a state of war with each other and neutrality towards third States, subject to limitations of international customary and treaty laws, if they choose to apply against each other to the utmost military as well as political and economic power”. The striking feature of the German’s definition is that unlike the others he takes into account the position of ‘third states’ which is ‘neutral States’ whose role often impinges very significantly on outcome of the conflict.’[3] These above mentioned definitions of ‘War’ has one thing similar; they all describe it in relation to states and do not take into account the situation where a group or organisation which is not a state by the virtue of not possessing the essentials required by the International Law for being a state. Post 9/11 in the name of ‘Fight Against Terrorism’ most of the conflicts have one such entity involved in a war and that is why a modern definition of war must include such entities too. For the purpose of this academic venture we will be considering all such armed conflicts within the meaning and definition of War.
PRISONERS OF WAR
Prisoner of war means any person captured or interned by a belligerent power during war. In the strictest sense it is applied only to members of regularly organized armed forces, but by broader definition it has also included guerrillas, civilians who take up arms against an enemy openly, or non-combatants associated with a military force.[4] Article 4 of the Third Geneva Convention which defines the term also clearly sets out those who are categorically recognized as prisoners of war: “1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. 2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; and (d) that of conducting their operations in accordance with the laws and customs of war.”[5]
After going through the above definitions a safe conclusion can be drawn that war is a state of restlessness between two or more nations or armed forces that forces the governments of the participating nations to use force against each other and hence allowing the victor state to impose such conditions as it deems suitable. Moreover, prisoners of war are a direct outcome of the war that constitutes between different nations or groups.
SAFEGUARDS TO POWs UNDER INTERNATIONAL LAW
Considering the historical background and the barbaric and inhumane treatment that the POW’s have been subjected to in the disturbances around the globe, they have been given a special status under international law and as a result have been granted with a plethora of safeguards to make sure that their basic human rights are well and duly protected. The international humanitarian laws as have casted a duty upon the states to treat the war captives or the POW’s in accordance with the provisions of the laws. The Third Geneva Convention of 1949, also known as the “Convention relative to the treatment of prisoners of war,1949” is the authoritative statement concerning prisoners of war which defines the term as well as lays down their safeguards. This convention deals with the plight of those persons who are taken captives during the armed conflict between the parties. This convention regulates to the smallest detail the treatment of prisoners of war. The prime responsibility of the treatment of the POW’s falls upon the detaining authorities and not upon the individuals. The Detaining Power is under a general obligation to treat prisoners humanely and protect them from danger.[6]They always retain their legal status even while they are kept as prisoners of war which is evident from the fact that they are allowed to wear their uniforms and that they continue to be subordinate to their own officers who are themselves prisoners of war .Moreover at the end of hostilities they are to be returned to their own country without delay. They must be supplied with food, clothing and medical attention.[7] They should be protected from public curiosity.[8] They are also entitled to elaborate due process guarantees, including trial by the courts that respect the same standards of justice as those respected by the courts that would try the military of the detaining state.[9] Medical and scientific experiments are prohibited. Prisoners are to be treated alike regardless of race, nationality, religious beliefs or political opinions.[10]
At the time of detention, the prisoner is required to give a minimum of information. He is only obliged to give name, military number, date of birth and serial number only. He is not to be subjected to torture and may retain his personal effects.[11] Conditions at the detention camp must meet standards provided in the convention.[12] The work that the prisoner is required to perform must not be inherently dangerous(unless he has voluntarily consented to do such dangerous work) humiliating or directly connected with the operations of war.[13] The prisoner must be permitted contact with his family and correspondence privileges.[14] Procedures must be established for registering complaints against the administration of the detention camp.[15] Penal and disciplinary sanctions, including procedures for determining guilt, are prescribed by the convention.[16] The convention also provides that the properties of prisoners shall not be disposed of them when arrested.[17] When hostilities have ceased, POWs must be repatriated.[18]
A very important group of provisions have been specifically dedicated for the repatriation of prisoners of war. The three categories are distinguished; Firstly, the severely wounded and the sick must be repatriated directly and without delay, i .e. as soon as they are fit to travel .This is a humane gesture towards such persons who may never participate in war again. Secondly, all other prisoners of war must be released and repatriated without delay after the cessation of active hostilities. Thirdly, without waiting for the war to end, the parties to the conflict should repatriate prisoners of war on humanitarian grounds, possibly on a reciprocal basis.
CONCLUSION AND SUGGESTIONS
The Convention Relating to Prisoners of war 1949 or commonly known as the third Geneva Convention has proven to be the “Bible” for the prisoners of war. The ill experiences of the second World War and the collective hue and cry amongst the peacekeepers regarding the human rights violations that occurred during this period as regards the prisoners of war ,made it the need of the hour that certain necessary and indispensible safeguards must be enacted for them. The result of this deliberation was the Third Geneva Convention which laid down a large number of rights for the war captives. But as we all know, the biggest problem isn’t “THE LAW” but “ITS IMPLEMENTATION”. Though, the convention has necessarily provided for a wide range of rights but we can see the powerful states making a complete mockery out of it. The most glaring example is that of the infamous Guantanamo Bay which has been referred to as the “Gulag of our times” by the Amnesty International. It has been reported that the Prisoners aren’t even provided with the Basic of protections as provided under the common Article 3 of the Geneva Conventions. Moreover, in the present era we can see different militant groups like Boko Haram and ISIS taking war captives and bluntly refusing to observe the safeguards as provided under the Geneva convention to the extent that they even entertain the public execution of these prisoners of war so that a stern message can be sent round the globe.
What is required is that the mere documentation of the safeguards isn’t enough. They must be brought into actual application as well. This is only possible when the United Nations stop acting like a “toothless dog” and take strong measures against the states who have been continuously involved in the violation of the safeguards provided to these victims of war. The situation is so lethargic that these prisoners of war are not even provided with the basic of amenities like food and water. An example is required to be set up and it is possible only when the UN takes action against the states violating the laws so that it may set a precedent requiring the states to act in the manner provided in the conventions.
[1] “What are Human Rights?” available at http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx (Visited on 02 March, 2015)
[2] Available at http://www.dailymail.co.uk/news/article-2736764/Marched-deaths-Sickening-ISIS-slaughter-continues-250-soldiers-captured-Syrian-airbase-stripped-led-desert-mass-execution.html (Visited on 03 March, 2015)
[3] Aziz M. Kurtha, “AffairsPRISONERS OF WAR, WAR CRIMES AND THE GENEVA CONVENTIONS” 25PH at p. 99 (1972)
[4] Available at http://www.britannica.com/EBchecked/topic/477235/prisoner-of-war-POW (Visited on 02 March, 2015)
[5] Norfadhilah Mohd Ali, “WHEN CIVILIANS “CROSS THE LINE”: THE INTERNATIONAL AND ISLAMIC LAW PERSPECTIVES”, 1 IJHSS, at p.225 (2011)
[6] Article 19 GC III
[7] Article 20 GC III
[8] Article 13 GC III
[9] Article 84, 99-108 GC III
[10] Article 16 GC III
[11] Article 17 GC III
[12] Article 22 and 23 GC III
[13] Article 51,52 and 56 GC III
[14] Section V Article 70-73 GC III
[15] Article 78-90 GC III
[16] Article 82-88 GC III
[17] Article 18 GC III
[18] Article 118 GC III provides that ‘POWs shall be released and repatriated without delay after the cessation of active hostilities.’
