Ensuring the Rights and Civil Liberties of War Prisoners
By: Pallabi Paul* |
The issue of soldiers and civilians being illegally confined during a war has always been in discussions around the globe. A prisoner of war is a non-combatant; it does not matter whether they are military leaders, an irregular military soldier, or a civilian, or someone who is held as a hostage during or immediately after an armed conflict by a belligerent force.
In 1660, the term "Prisoners of War" (POW) was coined after many incidents of atrocities against prisoners of war which included preventing them from taking further part in the hostilities or for using them to gain valuable intelligence. Prisoners even failed to meet their basic needs in POW camps which provided nutrition, medical treatment, accommodation, which led to their death.
The prisoners were ill- treated in order to get confidential information against the state they belonged to as well as were forced to perform certain tasks like- carrying wounded soldiers off the battlefield and do manual work designated for them to perform, against their will. Apart from this Seventy thousand Austro-Hungarian and German POWs used to construct the Murmansk Railway which eventually caused 25,000 of them to die. Likewise, approximately 19.75 percent of 468,000 Italian prisoners captured by Austria -Hungary died.(1) Even those who got released, suffered from post- traumatic stress, depression, dissociation and much more.
Although the issue with regards to violation of rights of prisoners of war was there since the Roman period, it was only after the First World War that the legal frameworks were made in order to safeguard their rights as well as ensure their freedom. As per Article 14 of the Geneva Convention with respect to POWs,(2) prisoners of war are entitled to get respect under any circumstances. There are many international instruments like International Committee of the Red Cross (ICRC); Third Geneva Convention, which was established firstly in 1929 and after World War II in 1949, further modified in 1977; Additional Protocol I; Universal Declaration of Human Rights, under which provisions with regard to the protection of the rights of the prisoners are provided and duly recognized. Furthermore, even the International Humanitarian Law (IHL) has an aim to limit the effects that armed conflicts have on the overall population.
Here in this article, an attempt has been made to highlight various provisions with regard to the Treatment of Prisoners of Wars, along with an overview of the historical background with special emphasis on the condition of Prisoners of war after World War I and II and on how they were ill- treated and tortured, and various International Instruments which have recognized the rights of Prisoners of War over the years.
Prisoners of War
As per the Geneva Convention III, the prisoners of war include those who are caught by the enemy stare during warfare, are from the armed force of another State, or assist these armed forces during war; people involved in organized resistance movement or militias or voluntary corps, civilian members of military aircraft crews, war correspondents, supply contractors, etc. are certain types of War Prisoners. (3)
History of Various Wars
Although the idea of prisoners of war existed from the Roman period, it was only after the First World War that the safeguarding of their rights and freedom became a matter of concern, we can see many cases in modern history where POWs have been violated and robbed. Victors were supposed to have the right to kill and enslave their enemies and the inmates were also entitled to exchange ransoms. Following is a brief explanation of how the prisoners of war were tortured and deprived of their basic human rights.
I) World War I
About 8 million solders as well as 2 million civilians were captured (4) and deprived of their basic fundamental rights as well as were brutally tortured and harassed- physically and mentally. However, half of Russia's losses were estimated to be men who were imprisoned and tortured, and about one third of the people in the Austria-Hungary armed forces and about 250,000 Italians prisoners of war were taken and captured in the prison (5) While about 10,000 prisoners of war of the Mesopotamian Front, including Indian armed forces, were attacked by the British imperial force, which also led to the fall of Przemyśl fortress. Thus, from the above-mentioned incidents it can be seen that POWs have been violated and robbed of even their basic human rights.(6) Also, due to the poor conditions in the camps of Prisoners of War and home front labor, large number of Prisoners of war died.
II) World War II
After the Second World War Soviet prisoners of war who were engaged in it suffered from cruelty and violence in the prison. They have suffered severe tortures with rats and have eaten grasshoppers for nourishment. Besides this, even many of medical experiments on them had also started. About 50,000 Allied Prisoners of war died, many from brutal treatment. (7)
Belligerents hold war prisoners in custody for a numbers of lawful and unlawful reasons, such as isolating them from enemy combatants still on the ground, releasing and repatriating them in a distinct way after hostilities, demonstrating military victory, punishing them, prosecuting them for war crimes, and exploiting them too.(8)
International Instruments and Various Provisions
International conferences in The Hague in 1899 and again in 1907 developed rules of conduct which gained some acceptance in international law. However, during World War I, when POWs were numbering in the millions, there were several claims that the laws were not being faithfully adhered to . Several conventions were formed with regards to the rights of Prisoners of War:
I) Geneva Convention
In 1929, the Third Geneva Convention was formed, but after the 2nd World War in 1949 it was further amended and some protocols were added which focused on the rules and regulations required to be followed for the protection of soldiers and their discharge, along with this a comprehensive study of their rights stated that the prisoners of wars are not eligible to be prosecuted for their involvement in hostilities. Many countries like France, US, Britain, etc. have signed and followed the provisions of the Convention and have accepted the violence against POW while agreeing with some conventions and laws like International Committee of the Red Cross (ICRC) and the Geneva Convention in order to protect their rights.
As per Article 143 of the Geneva Convention III, it provides that the Prisoners of War should not be ill-treated and are required to adequately housed and given sufficient food, clothing and medical care.(9)
Article 3 provides minimum international security to persons not taking an active part in conflicts- including members of the armed forces in particular circumstances set out in this Article. Under this clause fair and non-discriminatory care are two essentials guaranteed. (10) Prisoners of war should not be the perpetrators of abuse, threats, insults and public curiosity and ill treatment and should get the basic ingredients like food, clothes, water etc.(11)
II) International Humanitarian Law (IHL)
International Humanitarian Law (IHL) is the document formed with the purpose of protecting those who do not involve in the hostile activities as well as to protect the basic rights of those who are involved in an armed conflict .
III) The Uniformed Services Employment and Reemployment Rights Act (USERRA)
All soldiers did not have the same amount of liberty while in military since number of times, they were all discriminated by their employers or co-workers. In order to solve this problem, the USERRA has established a legal framework in order to protect the rights of every soldier with equal dignity. USERRA ensured that the ‘returning veterans’ should be employed again on to their earlier posts while protecting the right to get employed of the veterans civilians. USERRA plays a vital role in prohibiting the employment discrimination against a person on the ground of earlier military services, current military obligations, or the intent to serve. (12)
Various Approaches to Prevent War Prisoners from Brutalities
International Committee of the Red Cross (ICRC) is playing an important role in enhancing the strength of International Humanitarian Law Project. However, in 2012 and 2015, the ICRC commenced empowering the International Humanitarian Law Project in order to project the victims of armed conflicts in a legal way(13).Furthermore ,often International Humanitarian Law (IHL) focuses upon the humanitarian impact of armed conflict. Even the ongoing armed conflicts repeatedly illustrates that in the present era- the universally acknowledged laws of war are often ignored. Moreover, IHL has also failed in establishing strong mechanisms to prevent any kind of violation. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) was adopted by the United Nations General Assembly in 1984 with the object to fight against the use of torture against mankind more effectively in all countries.(14)
Relevant Provisions with regards to the Treatment of Prisoners of Wars
When questioned on the subject for proper treatment and respect, every prisoner of war is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or physical or mental condition, are unable to state their identity, are to be handed over to the medical department. No physical or mental torture or other forms of coercion can be inflicted on prisoners of war in order to secure information from them. Prisoners of war who fail to respond will not be intimidated, humiliated or subjected to any kind of unfavorable or disadvantageous treatment. (15)
Recommendations and Suggestions
From the above-mentioned discussion, we can find how the Prisoners of War (POWs) were humiliated and ill-treated, and in such situation it's necessary to consider the following -
1) A major aspect of this issue that needs to be covered is the treatment of psychological traumas of former war prisoners as soon as they return to society, especially PTSD which is psychological disorder which includes failure to recover after experiencing or witnessing a terrifying event.
2) There are certain requirements of new policies and programs by enterprises and the government in order to assist war prisoners in job searching and promote the idea of hiring back veterans-like low ranking soldiers and sailors, including midshipmen and junior officers-this will prevent discrimination and help with the reintegration of veterans into society.
3) Conflict parties are obliged to send or repatriate POW in order to safeguard the rights of the prisoners of War, without considering about their rank, who are severely injured or ill, after having taken care of them before they are fit to fly. The opposing parties are expected to mention the expeditious return of POWs in any agreement, so as to end the hostilities.
4) Prisoners of War should get the paid work and not to be forced for any work which is dangerous, unhealthy, or degrading.
5) Moreover, they should not be forced to share any details except for name, age, rank, and service number.
6) Strict laws are required to be passed at national level and Government should give more attention to issues faced by War Prisoners.
The Universal Declaration of Human Rights (UDHR)- adopted in 1948 recognizes the rights of people of all states and incorporates basic human rights legislations that should be defended globally. Hence, even War Prisoners should be able to receive that kind of protection simply in virtue of being human.
Many nations have chosen to follow the regulations of the International Committee of the Red Cross (ICRC), Geneva Convention, etc., which has contributed in declining the number of POW deaths over the years. Even so, there are still certain nations that choose not to sign or follow the guidelines of the International Committee of the Red Cross (ICRC), Geneva Convention and treaties for the protection of rights of Prisoners of War. Prisoners of war should no longer be limited to certain rights and liberties. POWs must be treated humanely in all circumstances. They should be protected against any act of violence, as well as against intimidation, insults, and public curiosity and should be provided conditions of detention while covering issues such as accommodation, food, clothing, hygiene and medical care. Any illegal act or omission by the Detaining Power which leads to death or endangers the health of a prisoner of war in custody is prohibited and such activities should be condemned by all nations as, these unlawful acts are also regarded as a serious breach of the present Convention like Geneva Convention. From the above discussion it can be concluded that much more stringent laws required to be passed and to be followed in order to protect the rights of the Prisoners of War.
* The author is a student at Department of Law, Assam University, Silchar.
(1) Roxanne Sideri,"Issue: Ensuring the rights and civil liberties of war prisoners",Costeas-Geitonas School Model United Nations 2016,visited 28th July 2020
(2) Geneva Convention relative to the Treatment of Prisoners of War,http://hrlibrary.umn.edu/instree/y3gctpw.htm#:~:text=Article%2014,as%20that%20granted%20to%20men.
(3) Treaties, States Parties and Commentarieshttps://ihl-databases.icrc.org/ihl/COM/375-590007
(4) Supra Note -1
(10) Supra Note -1
(13) The Editors of Encyclopædia Britannica, “Prisoner of War (POW)”
(14) Supra Note - 1
(15) Gurmeet Singh Jaggi, All about Prisoners of War: Protection of Human Rights and International Conventions, https://www.latestlaws.com/articles/all-about-prisoners-of-war-protection-of-human-rights-and-international-conventions/#:~:text=International%20Humanitarian%20Law%20provisions%20set,food%2C%20clothing%20and%20medical%20care.