Proceedings of the 9th International Academic Conference, Istanbul

DEFINING AND RECOGNIZING PRISONERS OF WAR IN CONTEMPORARY ARMED CONFLICTS

SANDRA FABIJANIC GAGRO

Abstract:

Contemporary international humanitarian law (IHL) classifies all armed conflicts into two basic groups - international and non-international. In international armed conflict is clear distinguishing between civilian and combatants. The civilian has right on immunity of the attack, unless is joined to the armed forces, by what he/she loses the civilian rights, and gains the combatants rights. The combatant's right is to participate in the hostilities, with no criminal charges for this action. Captured combatant in international armed conflict become prisoner of war and must be given humane treatment from the time he/she fall into the power of the enemy until final release and repatriation. To be recognized as a prisoner of war, a captured person has to fit within one of the six categories in Article 4 of the 1949 Geneva Convention (3rd) relative to the Treatment of Prisoners of War. Despite this provision, in the practical armed conflict situation the distinction between combatant and civilian may not always be apparent. Article 5 of this Convention provides that if the prisoner of war status of a captured person who has committed a belligerent act is in doubt, their status shall be determined by a competent tribunal. What is not completely clear is what any doubt really means and how to describe a competent tribunal. Unlike the international armed conflict matter, in non-international armed conflict there are no persons called combatants, and captured rebel has no right and is not considered as prisoner of war. That is because the state do not recognize possibility for person to attack from inside their armed forces. These persons are to be considered as common criminals. Despite the fact that they ar not combatants, the recommendation of the ICRC is (as a mean of after-war national reconciliation) to approve certain rights to the members of dissident groups, which are inherent to regular combatant's rights. In general, the recognition of the prisoner of war status to the captured rebel status represents specific modification of principle from the 3rd 1949 Geneva Convention, which recognizes the war prisoner status to the members of other militias and members of other volunteer corps, including those of organized resistance movements, if they fulfil prescribed conditions.

Keywords: international humanitarian law, armed conflict, prisoner of war, soldier, human treatment, ICRC

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