¹ Green, L. C., The Contemporary Law of Armed Conflict, Manchester University Press, Manchester, 1993, p. 188Google Scholar; Fischer, H., “Protection of prisoners of war”, in Fleck, D. (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford, 1995, p. 325.Google Scholar

² Art. 99 of GC III provides: “No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by International Law, in force at the time the said act was committed.”

³ Articles 12–16 set forth the general protection to be given to prisoners of war by the Detaining Power, including the requirement of humane treatment at all times (Art. 13), respect for their persons and their honour (Art. 14) and the principle that there must be no adverse distinction in treatment based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria (Art. 16). See also Art. 5(1) GC III.

⁴ Delegates were aware that status determination decisions might have “the gravest consequences”. Pictet, J., Commentary on the Third Geneva Convention relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960Google Scholar [hereinafter Commentary GC III], p. 77.

⁵ GC III, Art. 5(2).

⁶ This assertion, first made in 1941 by the German Admiral Canaris in protest against the regulations concerning Russian prisoners of war issued by the German army authorities, was approved as legally correct by the International Military Tribunal at Nuremburg. HMSO Cmd 6964 (1946) p. 48, reprinted in American Journal of International Law, Vol. 41, 1947, pp. 228–229.

⁷ Ibid.

⁸ In ancient times, prisoners of war were killed, mutilated or enslaved, whereas in the Middle Ages they were generally imprisoned or held to ransom. In the 17th century, for the first time, prisoners of war were regarded as prisoners of the State and not the property of the individual captors. Ill-treatment of prisoners of war continued, however, throughout the 19th century. Following World War II, a great number of German and Japanese officers were tried and convicted for the murder and maltreatment of prisoners of war. Art 6(b) of the Charter of the International Military Tribunal made “murder or ill-treatment of prisoners of war” a war crime. See the Dachau Concentration Camp Trial, 11 W.C.R., p. 5; Belsen Trial, 2 W.C.R.; “The Law of War on Land”, Part III of the Manual of Military Law, The War Office, London, 1958 [hereinafter UK 1958 Military Manual], p. 45, para. 122; Fischer, , op. cit. (note 1), p. 322.Google Scholar

⁹ This is stipulated as a rule in Art. 3 of the Convention relative to the Treatment of Prisoners of War, Geneva, 27 July 1929 (the 1929 Prisoner of War Convention), and in Art. 16 of GC III: “Prisoners of war are entitled to respect for their persons and honour.”

¹⁰ GC III, Art. 12(1).

¹¹ GC III, Art. 12(2). If that Power fails to carry out the provisions of GC III in any important respect, the Power which transferred the prisoners of war must either take measures to correct the situation or must request their return. Such requests must be complied with. Art. 12(3) GC III.

¹² The six categories in GC III, Art. 4, are: “(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; (d) that of conducting their operations in accordance with the laws and customs of war; (3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power; (4) Persons who accompany the armed forces without actually being members thereof (…); (5) Members of crews (…) of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law; (6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular army units, provided they carry arms openly and respect the laws and customs of war.”

¹³ See for example the confusion over combatants and non-combatants in the 1980–1988 Iran-Iraq War, described in Tavernier, P., “Combatants and non-combatants”, in Dekker, I. and Post, H. (eds), The Gulf War of 1980–1988: The Iran-Iraq War in International Legal Perspective, Martinus Nijhoff Publishers, The Netherlands, 1992, pp. 129–136.Google Scholar

¹⁴ “Doubt” is defined by the Oxford English Dictionary, 2nd. ed., 1989, as being either “the (subjective) state of uncertainty with regard to the truth or reality of anything” or “the condition of being (objectively) uncertain; a state of affairs such as to give occasion for hesitation or uncertainty.”

¹⁵ Merriam-Webster's Dictionary of Law 1996.

¹⁶ See for example “Statement of Eliso Massimino, Director of the Washington Office of the Lawyers Committee for Human Rights”, Lawyers Committee for Human Rights Press Release, 7 February 2002, <http://www.lchr.org/media/admin_gc.htm>.

¹⁷ New Zealand Defence Force Interim Law of Armed Conflict Manual, Directorate of Legal Services Headquarters, Wellington, 1992, para. 907(3).

¹⁸ Australia, Defence Force Manual 1994, ADFP 37, para. 1004.

¹⁹ Public Prosecutor v. Oie Hee Koi and connected appeals, judicial Committee of the Privy Council (U.K.), 4 December 1967 [1968], A.C. 829.

²⁰ Ibid., p. 834.

²¹ Ibid., p. 839.

²² Section 1–6 (b) Army Regulation 190–8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Headquarters Departments of the Army, the Navy, the Air Force, and the Marine Corps, Washington, DC, 1 October 1997 [hereinafter 1997 US Army Regulation].

²³ The Party makes this claim by notification to the detaining Power or to the Protecting Power. Protocol I, Art. 45(1).

²⁴ Sandoz, Y., Swinarski, C. and Zimmerman, B. (eds), Commentary to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 lune 1977 (Protocol I), Martinus Nijhoff Publishers, Geneva, 1987Google Scholar, [hereinafter Commentary to Protocol I] p. 544, para. 1726.

²⁵ Ibid., para. 1728. The first paragraph of Article 45, entitled “Protection of persons who have taken part in hostilities” provides: “A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Geneva Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.”

²⁶ Commentary to Protocol I, op. cit. (note 24), p. 553, para. 1746.

²⁷ Oxford English Dictionary, 2nd ed., 1989. The word “competent” is used in the International Covenant on Civil and Political Rights, adopted by GA Res. 2200 A (XXI) of 16 December 1966 [hereinafter “the Covenant”], and in the American Convention on Human Rights 1950 to denote one of the essential characteristics of a tribunal for the determination of any criminal charge or of rights and obligations in a suit of law.

²⁸ Oxford English Dictionary, 2nd ed., 1989.

²⁹ See “XVIth International Red Cross Conference, Draft revised or new Conventions”, p. 54, quoted in Commentary GCIII, op. cit. (note 4), p. 77 (emphasis added).

³⁰ See Final Record of the Diplomatic Conference of Geneva of 1949, Federal Political Department, Berne, Vol. II-A, p. 388. During the Second World War, decisions regarding the right of a captive to benefit or not from the protection of the 1929 Prisoner of War Convention had sometimes simply been taken by non-commissioned officers, particularly corporals. See Maunoir, J. P., “La répression des crimes de guerre devant les tribunaux français et alliés” (thesis), Geneva, 1956, p. 191Google Scholar, cited in Commentary GC III, op. cit. (note 4).

³¹ Final Record of the Diplomatic Conference of Geneva of 1949, Vol. Ill, No. 95, p. 63.

³² The USSR delegation pointed out that “If the defendant is sentenced by a [military] tribunal, he will not only be unable to benefit by the Convention under Article 4 [Article 5], but it is also uncertain whether he will succeed in clearing himself (…). I believe that the persons to be protected would (…) refuse the benefit of the Convention rather than appear before a military tribunal which is likely to punish them.” Ibid., Vol. II-B, p. 270.

³³ The Danish delegation suggested replacing the words “military tribunal” with “competent tribunal”, which would mean that “[t]he laws of the Detaining Power may allow the settlement of this question by a civil court rather than by a military tribunal.” Loc. cit.

³⁴ Article 45(2) of Protocol I provides, inter alia: “If a person who has fallen into the power of an adverse Party is not held as a prisoner of war and is to be tried by that Party for an offence arising out of the hostilities, he shall have the right to assert his entitlement to prisoner-of-war status before a judicial tribunal and to have that question adjudicated.”

³⁵ Commentary to Protocol I, op. cit. (note 24), p. 551, para. 1745. Bothe, Partsch and Solf have also commented that “[a]n administrative board is generally considered to satisfy this requirement”, citing US Army, Field Manual 27–10, para. 71b. Bothe, M., Partsch, K., and Solf, W., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, The Hague, 1982, p. 260.Google Scholar

³⁶ Such rules were applied by the United States during the Vietnam War. See “Contemporary practice of the United States relating to international law”, American journal of International iow, Vol. 62, 1968, p. 767.

³⁷ Protocol I, Art. 45(2).

³⁸ Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, pp. 270–271.

³⁹ Bothe, , Partsch, and Soif, , op. cit. (note 35), p. 260.Google Scholar

⁴⁰ Commentary to Protocol I, op. cit. (note 24), p. 554, para. 1751.

⁴¹ O.R. XV p. 433, CDDH/lll/338 quoted in Commentary to Protocol I, op. cit. (note 24), para. 1752. Administrative authorities, military or other commissions were excluded at this stage. The tribunal called upon in the first instance to determine prisoner-of-war status may be civilian or military. The moment that prisoner-of-war status is recognized, however, Articles 84 and 102 of GC III apply, unless the offence was merely one of taking part in hostilities, in which case the indictment will lapse. Art. 84 requires the Detaining Power to have the person tried by a military court, while Art. 105 specifies all the rights and means of defence of an accused. It is a grave breach to deprive a prisoner of war of his rights to fair and regular trial, both under GC III (Art. 130) and under Protocol I (Art. 85(4)(e)).

⁴² Art. 45(2) of Protocol I provides that: “[w]henever possible under the applicable procedure, this adjudication [of prisoner-of-war status] shall occur before the trial for the offence.”

⁴³ For example, the UK 1958 Manual of Military Law, op. cit. (note 8), with regard to the difficulty of application of Art. 5 of GC III for combatants coming under Art. 4A(6), states that: “It would seem that if a civilian is alleged to have violated the law of war [for example] by firing at the wounded and stretcher bearers, he would nevertheless be entitled to be treated as a prisoner of war until a competent tribunal had established that he had not complied with any one of the requirements of Art. 4A(6) (…). Accordingly, if it were proved before such competent tribunal that he had fired on the wounded or protected medical personnel of the enemy, that fact would automatically disentitle him to prisoner-of-war status with the result that he could be tried as a civilian who had committed illegal acts of hostility.” This interpretation is contrary to the common understanding that a violation of the laws of war does not deprive a person of combatant or prisoner-of-war status, but entails his prosecution under Art. 85 of GC III. The requirement of respect for the laws and customs of war is constitutive of combatant status only as a group criterion, not as an individual criterion. See also Art. 44 of Protocol I.

⁴⁴ Commentary to Protocol I, op. cit. (note 24), para. 1755.

⁴⁵ O.R. XV, p. 433, CDDH/lll/338. The Commentary to Protocol I notes that although “undoubtably [it would have] been easier, in theory, to provide for such guarantees right at the first stage, when the status of prisoners is determined by the ‘competent tribunal’ (…) it did not seem feasible to burden a tribunal called upon to intervene on the battlefield with such a difficult task.” Commentary to Protocol I, op. cit. (note 24), p. 554, para. 1751.

⁴⁶ If a person does not qualify as a prisoner of war, or until such status is granted, he is protected by the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 (GC IV).

⁴⁷ Art. 45(3) of Protocol I provides: “Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol.”

⁴⁸ See for example Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA Res. 43/173 of 9 December 1988; International Covenant on Civil and Political Rights, op. cit. (note 27), Articles 9 and 14; Universal Declaration of Human Rights, GA Res. 217 A (III) of 10 December 1948, Articles 6–11; American Declaration of the Rights and Duties of Man 1948, Articles II, XVIII, XXV and XXVI; and Standard Minimum Rules for the Treatment of Prisoners, GA Res. 43/173 of 9 December 1988.

⁴⁹ Legality of the Threat or Use of Nuclear Weapons in Armed Conflict, International Court of justice Advisory Opinion of 8 July 1996, ICJ Reports 1996, paras. 23–34.

⁵⁰ Note, in particular, Art. 75(3) providing that “[a]ny person arrested, detained, or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.” (Emphasis added). See also Art. 75(4) listing fundamental due process rights.

⁵¹ Art. 3(1)(d) common to the Geneva Conventions prohibits at any time and in any place whatsover “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

⁵² The International Court of justice has described common Art. 3 as a reflection of “elementary considerations of humanity.” Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, pp. 14 and 114. See also Meron, T., “Humanization of humanitarian law”, American Journal of International Law, Vol. 94, 2000, p. 246.CrossRefGoogle Scholar

⁵³ Organization of American States, Washington, D.C., 20006, Ref. Detainees in Guantanamo Bay, Cuba: Request for Precautionary Measures, 13 March 2002, available at: <http://www.humanrightsnow.org/oasconventionnonguantanamodetainees.htiro>.

⁵⁴ Ibid., p. 3. Without the clarification of legal status, “the Commission considers that the rights and protections to which they may be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the State.”

⁵⁵ The core of the due process guarantees stated in Art. 14 of the Covenant, op. cit. (note 27), may be regarded as having reached customary law status, in view of the large number of parties to the Covenant (148 States Parties at 10 July 2002) and the degree to which some of the fair trial rights in the Covenant have been repeated in other international instruments, and through the incorporation of the rights in national laws. See generally Weissbordt, D. and Wolftrum, R. (eds), The Right to Fair Trial, Springer, Berlin, 1997.CrossRefGoogle Scholar

⁵⁶ United Nations Human Rights Committee General Comment on Reservations No. 24, para. 8. UN Doc. CCPR/C/21/Revi/Add.6, 2 November 1994.

⁵⁷ Restatement (Third) of the Foreign Relations Law of the United States, § 702 (1987).

⁵⁸ Human Rights Committee, General Comment 13, Article 14, UN Doc. HRI/GEN/i/Rev.i (1994), at 14.

⁵⁹ Human Rights Committee, General Comment 5, Article 4, UN Doc. HRI/GEN/i/Rev. 1 (1995), at 5.

⁶⁰ De Zayas, A., “The United Nations and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, in Weissbordt, and Wolftrum, , op. cit. (note 55), p. 674.Google Scholar The Inter-American Court of Human Rights has similarly held that the “essential” guarantees which are not subject to derogation under the American Convention on Human Rights include habeas corpus, amparo, and any other effective remedy which is designed to guarantee respect for the non-derogable rights and freedoms in the Convention, judicial Guarantees in States of Emergency, Advisory Opinion OC-9/87 of 6 October 1987, Inter-Am. Ct. H.R. (Ser. A) NO. 9 (1987), at 41. The United Nations Commission on Human Rights adopted a resolution in 1994 encouraging States “to establish a procedure such as habeas corpus or a similar procedure as a personal right not subject to derogation, including in states of emergency”, Res. 1994/32 of 4 March 1994.

⁶¹ 1997 US Army Regulation, op. cit. (note 22).

⁶² Ibid., Section 1–6 (b).

⁶³ The following guarantees are stipulated: (1) a written record of proceedings; (2) open proceedings except for deliberation or if security would be compromised; (3) persons shall be advised of their rights at the beginning of their hearing; (4) persons shall be allowed to attend all open sessions and be provided with an interpreter if necessary; (5) persons shall be allowed to call witnesses if reasonably available and to question those witnesses called by the tribunal; (6) persons have a right to testify; (7) persons may not be compelled to testify. The standard of proof used by the tribunal is “preponderance of evidence”. In addition, a written record of the tribunal decision is required to be completed in each case. The tribunal may make the following board determinations: (a) prisoner of war; (b) recommended retained personnel, entitled to prisoner of war protections, who should be considered for certification as a medical, religious, or volunteer aid society retained personnel; (c) innocent civilian who should immediately be returned to his home or released; and (d) civilian internee who for reasons of operational security, or probable cause incident to criminal investigation, should be detained. Ibid., Section 1–6 (10).

⁶⁴ Ibid., Section 1–6(g).

⁶⁵ Ibid.

⁶⁶ The Handbook notes that in some cases they had surrendered to Coalition forces to receive food and water.

⁶⁷ The Handbook states that “[w]hether the tribunals were necessary as a matter of law is open to debate — the ‘civilians’ had not ‘committed a belligerent act’, nor was their status ‘in oubt’.” If it was determined that they were civilians who had taken no part in hostilities, they were transferred to refugee camps.

⁶⁸ Directive Number 20–5 of 15 March 1968, reproduced in American Journal of International Law, Vol. 62, 1968, p. 768.

⁶⁹ Ibid., Art. 2.

⁷⁰ Ibid., Art. 5(f).

⁷¹ Ibid., Annex A(3).

⁷² Ibid., Annex A(7).

⁷³ Decisions were by majority vote, but if the vote was evenly divided the decision would be in favour of prisoner-of-war status. Ibid., Annex A(6). Where the determination was that a detainee was not entitled to prisoner-of-war status, the decision had to be accompanied by all relevant documents and copies given to all parties and the convening authority. Ibid., Art. 15(b).

⁷⁴ Commentary to Protocol I, op. cit. (note 24), p. 548. The reason for such treatment was largely based on the reciprocal benefits for American captives in the power of the Viet Cong and North Vietnamese Army. “Prisoners of War and War Crimes”, <http://www.army.mil/cmh-pg/books/Vietnam/Law-War/law-04.htm>.

⁷⁵ Quoted in “Prisoners of War and War Crimes”, op. cit. (note 74), p. 5.

⁷⁶ “The Law of Armed Conflict”, Army Code 71130, D/DAT/13/35/66, United Kingdom Ministry of Defence, revised 1981, p. 28.

⁷⁷ UK 1958 Military Manual, op. cit. (note 8), p. 50Google Scholar, para. 132.

⁷⁸ Ibid., p. 35, para. 104.

⁷⁹ The Manual calls for the creation of Regulations to provide for tribunals to function as competent tribunals for the purposes of Art. 5. Ibid., para. 104. This was done in the Prisoner of War Determination of Status Regulations 1958, First Schedule of the Royal Warrant Governing the Maintenance of Discipline among Prisoners of War 1958.

⁸⁰ Ibid., footnote 3(a).

⁸¹ Risius, G., “Prisoners of war and the United Kingdom”, in Rowe, P. (ed.), The Gulf War 1990–91 in International and English Law, Routledge, London, 1993, p. 296.Google Scholar

⁸² These Rules derive their authority from s.135 Army Act 1955 (UK). The detainees were allowed legal representation, were present during the proceedings, and could give evidence and question witnesses.

⁸³ Articles 4 and 5 of the Prisoner-of-War Status Determination Regulations, SOR/91–134, Department of Justice Canada, 1 February 1991.

⁸⁴ The authorities which may establish a tribunal are: the Ministry of National Defence; the Chief of the Defence Staff; an officer commanding a command; an officer commanding a formation; and any other -authority that the Chief of the Defence staff may prescribe or appoint. Ibid., Art. 3.

⁸⁵ Ibid., Art. 8.

⁸⁶ If the authority is not in doubt as to entitlement of prisoner-of-war status, it may direct the commanding officer either to recognize prisoner-of-war status or not to, depending on its opinion. See ibid., Art. 8(1)(a)and(b).

⁸⁷ Ibid., Articles 10, 6(2), 11, 13(d), and 17 respectively.

⁸⁸ Ibid., Art. 13(g).

⁸⁹ Ibid., Art. 12. See also Canada LOAC [The Law of Armed Conflict at the Operational and Tactical Level] Manual 1999, Office of the Judge Advocate General, 8 January 1999, Section 2 (10).

⁹⁰ Australia, Defence Force Manual 1994, ADFP 37, para. 1004.

⁹¹ Law of Armed Conflict Commanders’ Guide, ADFP 37 Supp. 1, Australian Defence Force Publication, Operations Services, Canberra, 7 March 1994, para. 703.

⁹² Interim Law of Armed Conflicts Manual, op. cit. (note 17), para. 912.Google Scholar New Zealand does not have any prisoner-of-war status determination regulations in force, although under section 9 of the Geneva Conventions Act 1958, the Governor-General by Order in Council may make such regulations as are necessary to give full effect to the Act.

⁹³ Imprisonment of Combatants not Entitled to Prisoner-of-War Status Law, 5769–2000, Art. 1.

⁹⁴ Ibid., Art. 3(A). The order is valid until “the end of hostile activities between the State of Israel and the force combating Israel to whom the prisoner belongs or took part in its activities” or until an earlier time that the Chief of Staff shall direct. See ibid., Art. 3(B).

⁹⁵ Ibid., Art. 4.

⁹⁶ Ibid., Art. 4(E), (D) and (C).

⁹⁷ Rubin, A., “Terrorism and the laws of war”, Denver journal of International Law and Policy, Vol. 12, No. 2–3, 1983, p. 227.Google Scholar

⁹⁸ For a discussion of the legal issues involved, see Chlopak, E., “Dealing with the detainees at Guantanamo Bay: Humanitarian and human rights obligations under the Geneva Conventions”, Human Rights Brief, Vol. 9, Issue 3, p. 1Google Scholar, available at: <http://www.wd.american.edu/hrbrief/09/3guantanamo.cfm>.

⁹⁹ Bothe, , Partsch, and Soif, , op. cit. (note 35), p. 260.Google Scholar

¹⁰⁰ See notes 14–25 and accompanying text.

¹⁰¹ See Section Two on State practice with regard to Art. 5(2), especially practice of the US and the UK.

¹⁰² Quoted in Depuis, M., Heywood, J. and Sarko, M., “The Sixth Annual American Red Cross — Washington College of Law Conference on International Humanitarian Law and the 1977 Protocols Additional to the 1949 Geneva Conventions“, American University International Law Review, Vol. 2, No. 2, 1987.Google Scholar

¹⁰³ Section 1–6(b) 1997 US Army Regulation, op. cit. (note 22).

¹⁰⁴ Commentary to Protocol I, op. cit. (note 24), p. 550, para. 1743.

¹⁰⁵ Denial of the right to fair trial is a grave breach of both GC III (Art. 130) and GC IV (Art. 147). It is also a grave breach to deny the right to fair trial to a person protected by Art. 45 of Protocol I. This would include the judicial guarantees for status determination procedures under Art. 45(2).