91AS0607D Islamabad THE MUSLIM in English
17 Feb 91 pp4-5
By Mian Muhibullah Kakakhel, Senior Advocate
With the alleged Iraqi design to shift the Allied prisoners of war to sensitive military installations to be used as a human shield against a potential U.S.-led alliance airforce attack and the U.S. President declaring the action taken by Iraq to be a violation of International Law coupled with the fact that one of the allied airforce pilots reportedly died during an air attack on Iraq with a counter-version by President Saddam Husayn declaring President Bush to be a war criminal and the expected
arrest of thousands of combatants surrendering voluntarily or involuntarily from each side, a question begins lurking in the mind as to what is the law governing the arrest and detention of prisoners of war, soldiers wounded during active hostilities and the legal provisions dealing with war crimes and the trial of war criminals, especially when many Iraqi soldiers have also
been taken prisoners?
We propose to deal here with the law relating to the prisoners of war. Needless to mention here that the law of war is the most important part of the law governing interstate relations. In modern times, even war from the point of view of a hostile relationship between two or more states belonging to the world community is to be fought within the parameters of the rules laid down by the law of nations. Not only the arrest and detention but escape and evasion of enemy troops is also not an exception to the general law of war. The enemy soldiers who surrender voluntarily or are captured after a bloody contest are technically called prisoners of war. The Geneva Convention of 1949 provides for the amelioration
of the sick or wounded belligerents. Enemy soldiers indulging in guerrilla activities, including sabotage, and air piracy against their opponent State even in the States not party to the war shall, on arrest be treated as prisoners of war declared the Red Cross Geneva Convention. Enemy spies indulging in espionage will also be given the treatment of prisoners of war. However, they can be punished for the offence committed under the Hague Rules after affording them adequate opportunity to defend themselves.
The Hague Convention of 1907, though not for the first time in history, formally laid down certain rules with regard to the treatment of prisoners of war of the belligerent States. Another step for the betterment of thelaw relating to the� prisoners of war was taken at the Geneva Convention of 1929 after the world had witnessed the deadliest holocaust of its age, the First World War.
During the Second World War the law relating to the prisoners of war was atrociously violated. Not only that, very cruel treatment was meted out to the prisoners of war but thousands of unarmed enemy personnel were also done to death. During the entire period of the Second World War, the Axis forces ill-treated the prisoners of war by denying them adequate food, shelter, clothing and medical care. They were not only forced to labour in inhumane conditions but subjected to inhumane indignities and killing. The German government and the German High Command kept prisoners of war in various concentration camps where they were maltreated and killed by means of shooting, poisonous gases
or physical torture. The officers and non-commissioned officers of the enemy were forced to double march to the
concentration camps for as long as 800 kilometres without virtually any food and those staggering were shot
Members of the armed forces of the countries with whom Germany was at war were frequently killed while in the
act of surrendering, contrary to the law laid down, vide articles II, III, IV and VI of the Prisoners of War Convention of 1929 held at Geneva and articles 4, 5, 6, and 7 of the Hague Regulations 1907. The same crimes were committed in 1943, 1944 and 1945 when the occupants of certain camps were withdrawn before the Allied advance. The prisoners of war belonging to the Soviet Union were exterminated by starvation. There was no question of the survival of the hostages either.
The hostages of Belgium were shot dead during the period from 1940 to 1944. In France hostages were executed either individually or collectively. Similarly, many thousands of hostages were shot dead in Holland and Yugoslavia, contrary to Article 50 of the Hague Regulations of 1907, the laws and customs of war, the general principles of criminal law as derived from the penal laws of all the civilised nations and the interned penal laws of the countries in which such crimes were
The Geneva Convention of 1949 capitulating the prevalence of the above mentioned horrifying conditions added very exhaustive and elaborate rules to the International Law on prisoners of war catering for not only the enemy soldiers arrested during the declared wars but also the enemy personnel in any other armed conflict. The law laid down at the Convention will also apply in the case of an armed conflict in the territory of one of the contracting parties though it may not be of an international level. The rules laid down at the Geneva Convention regarding the prisoners of war may be summarised in the following sub-paragraphs:
(a) A prisoner of war is not to be tortured or forced into making a confession or to disclose the location of his unit
and the number of persons comprising it.
(b) Prisoners of war cannot be put to forced labour.
(c) Prisoners of war are to be humanly treated. Any unlawful act or omission by the detaining power causing
death or seriously endangering the health of prisoners of war is prohibited.
(d) Unlike the Axis practice, no prisoner of war may be subjected to medical or scientific experiments.
(e) Prisoners of war are to be provided with full medical facilities, food and water.
(f) Proper sanitation in the prisoners of war camps is essential.
(g) Measures of reprisal against prisoners of war are prohibited. They shall be entitled in all circumstances to
respect and personal honour, their exhibition on television is a violation of International Law.
(h) According to Article 13 of the Geneva Convention, prisoners of war are to retain the full civil capacity which
they enjoyed at the time of their capture. The detaining power may not restrict the exercise either within or
without its territory of the rights which the Convention confers except insofar as the captivity requires.
(i) [not published]
(j) There shall be complete equality of treatment to the prisoners of war and no discrimination on the basis of
race, nationality, religious belief or political opinions or any other distinction founded on similar criteria subject
however to any privileged treatment which may be accorded to them by reason of their state of health, age or
professional qualifications. This enactment was necessitated by the merciless killing of the Jews at the hands of
German warriors. A heavy lot of mankind was killed by the Germans simply because of their religious belief.
(k) A POW has an obligation only to give his name and number to the enemy. He has a right to keep silent to the
interrogatories by the detaining authority. No disadvantageous treatment is to be given to a POW who does not
cooperate with the detaining authority. However, he is to maintain discipline and not to pose problems for the
captor otherwise he may not get the facilities which he may otherwise be entitled to.
(1) All efforts and articles of personal use, except arms, horses, military equipment and military documents shall
remain in their possession, likewise their metal helmets and gas-masks, like articles issued for personal protection.
(m) Prisoners of war shall be evacuated as soon as possible after their capture to camps situated in an area
far enough from the combat zone for them to be out of danger.
(n) At no time should prisoners of war be without identity documents. The detaining power shall supply
such documents to prisoners of war who possess none.Badges of rank and nationality decorations and articles having above all, personal or sentimental value, may not be taken from the prisoners of war. The universally accepted principle of criminal law that no man is to be deprived of his life save in accordance with law equally applies to the prisoners of war.
There has been another problem needing serious consideration of the belligerent States as well as the world at large. The problem of the dead bodies and the injured members of the armed forces was considered in the Geneva Convention of 1864, Hague Conference of 1907, Geneva Conference of 1929 and the Geneva Conference of 1949 in which an International Law of paramount importance was laid down to the effect that the belligerent States shall have the right to take away the dead bodies of their armed forces after the end of active hostilities. It provided for the benevolent treatment of the sick, wounded and infirm persons at the hands of the seizing enemy power. The Geneva Conference of 1949 not only prohibited the launching of any attack on the injured members of the enemy forces but also banned the use of violence or methods of degradation against them. Prisoners of war are normally exchanged by the belligerents
on the eve of a declaration marking the end of war.
However, those prisoners of war who are found guilty of war crimes are liable to stand trial under the rules of International Law but the trial of such criminals is to be held in a component and duly authorised Court of Law.