|
|
The obligation to refrain from use of force against a medical vessel or sick-bay acting in
violation of its mission and protected status without due warning does not prohibit the exercise
of the right of self-defense. There may be cases in which, in the exercise of the right of self-
defense, a warning is not “due” or a reasonable time limit is not appropriate. For example, forces
receiving heavy fire may exercise their right of self-defense and return fire. Such use of force in
self-defense must also be proportionate.345
7.12.6.2 Conditions That Do Not Deprive Hospital Ships and Sick-Bays of Vessels
of Their Protection. The following conditions shall not be considered as depriving hospital ships
or sick-bays of vessels of the protection due to them:
• the fact that the crews of ships or sick-bays are armed for the maintenance of order, for
their own defense, or for the defense of the sick and wounded;
• the presence on board of apparatus exclusively intended to facilitate navigation or
communication;
• the discovery on board hospital ships or in sick-bays of portable arms and ammunition
taken from the wounded, sick, and shipwrecked, and not yet handed over to the proper
service;
• the fact that the humanitarian activities of hospital ships and sick-bays of vessels or of the
crews extend to the care of wounded, sick, or shipwrecked civilians; and
• the transport of equipment and of personnel intended exclusively for medical duties, over
and above the normal requirements.346
7.12.6.3 Arming of Hospital Ships and Equipping Them With Defensive Devices.
The GWS-Sea contemplates that the crews of hospital ships may be armed and does not
specifically restrict the weapons that they may have.
The crews of hospital ships may be armed to the extent necessary to enable them to
defend themselves or their patients against unlawful attacks. Such arming is viewed as
consistent with the ship’s humanitarian purpose and the crew’s duty to safeguard the wounded
and sick. For example, crews of hospital ships may be equipped with weapons to meet internal
security needs, to maintain discipline, to protect staff and patients from criminal threats of
violence, and to prevent the theft of medical supplies. The type of weapon that is necessary for
defensive or other legitimate purposes may depend on the nature of the threats against the
345 Compare § 7.10.3.2 (Due Warning Before Cessation of Protection).
346 GWS-SEA art. 35 (“The following conditions shall not be considered as depriving hospital ships or sick-bays of
vessels of the protection due to them: (1) The fact that the crews of ships or sick-bays are armed for the
maintenance of order, for their own defence or that of the sick and wounded. (2) The presence on board of
apparatus exclusively intended to facilitate navigation or communication. (3) The discovery on board hospital ships
or in sick-bays of portable arms and ammunition taken from the wounded, sick and shipwrecked and not yet handed
to the proper service.
(4) The fact that the humanitarian activities of hospital ships and sick-bays of vessels or of the
crews extend to the care of wounded, sick or shipwrecked civilians. (5) The transport of equipment and of personnel
intended exclusively for medical duties, over and above the normal requirements.”).
464
hospital ship.347 For example, hospital ships may be armed with defensive weapon systems,
including when necessary certain crew-served weapons, as a prudent anti-terrorism/force
protection (AT/FP) measure to defend against small boat attacks.348 On the other hand, crews of
hospital ships should not be armed such that they would appear to an enemy military force to
present an offensive threat.
Equipping hospital ships with other defensive devices - such as chaff for protection
against over-the-horizon weapons or similar threats - is not prohibited.349 However, such
devices, like weapons, must not be used to commit acts harmful to enemy military forces acting
in conformity with the law of war.350
7.13 CHARTERED MEDICAL TRANSPORT SHIPS
Ships chartered for medical transport purposes shall be authorized to transport equipment
exclusively intended for the treatment of wounded and sick members of armed forces or for the
prevention of disease, provided that the particulars regarding their voyage have been notified to
the adverse Power and approved by the latter.351 The adverse Power shall preserve the right to
board the carrier ships, but not to capture them or seize the equipment carried.352
7.13.1 Agreement to Place Neutral Observers on Chartered Medical Transports. By
agreement among the parties to the conflict, neutral observers may be placed on board such ships
347 For example, Michael Sirak, US Navy seeks to revise laws of war on hospital ships, Jane’s Defense Weekly 1-3
(Aug. 19, 2003) (“The USN installed both encrypted communications devices and 50-cal machine guns on the
USNS Comfort (T-AH 20), one of its two dedicated hospital ships, before it deployed in January to the Middle East
theatre to support the US-led Operation ‘Iraqi Freedom’, a US Department of Defense spokesman told Jane’s
Defence Weekly. … Furthermore, USN officials say the small arms currently allowed on hospital ships, such as
sidearms and rifles, are not enough to thwart an attack by a non-state actor like a terrorist group. They say the
limited protection afforded to these vessels under international law would be unlikely to deter terrorists and, unlike
lawful belligerents, terrorists would consider them an attractive ‘soft’ target. Therefore, they argue that it is
necessary to place ‘crew-served’ weapons like 30-cal and 50-cal machine guns on them, exclusively for defence, to
fend off attacks by swarming, heavily armed speed boats or suicide craft.”).
348 Jane G. Dalton, Future Navies - Present Issues, 59 NAVAL WAR COLLEGE REVIEW 17, 27 (Winter 2006) (noting
that a problem “facing hospital ships is the need to arm them for force protection against USS Cole-type attacks” and
that “chaff and flares [would be] ineffective against a determined suicide attack like that launched against Cole,”).
349 See 2004 UK MANUAL ¶13.124 (“Hospital ships may be equipped with purely deflective means of defence, such
as chaff and flares.”).
350 Refer to § 7.12.6 (Forfeiture of Protection of Hospital Ships and Sick Bays).
351 GWS-SEA art. 38 (“Ships chartered for that purpose shall be authorized to transport equipment exclusively
intended for the treatment of wounded and sick members of armed forces or for the prevention of disease, provided
that the particulars regarding their voyage have been notified to the adverse Power and approved by the latter.”).
352 GWS-SEA art. 38 (“The adverse Power shall preserve the right to board the carrier ships, but not to capture them
or seize the equipment carried.”).
465
to verify the equipment carried.353 For this purpose, free access to the equipment shall be
given.354
7.14 MILITARY MEDICAL AIRCRAFT
Medical aircraft - that is to say, aircraft exclusively employed for the removal of the
wounded, sick, and shipwrecked, and for the transport of medical personnel and equipment -
shall not be attacked, but shall be respected by the belligerents, while flying at heights and times,
and on routes, specifically agreed upon by the belligerents concerned.355
7.14.1 Medical Aircraft Not Flying at Heights and Times and on Routes Specifically
Agreed Upon by Belligerents Concerned. The use of protected medical aircraft generally
depends on an agreement between the belligerents.356
However, known medical aircraft, when performing their humanitarian functions, must
be respected and protected.357 Such aircraft does not constitute a military objective that is liable
to being made the object of attack.358 Thus, even if not flying pursuant to an agreement, such
aircraft shall not be deliberately attacked or fired upon, if identified as protected medical aircraft.
For example, if there is no agreement and a military force happens upon a medical aircraft
belonging to an enemy State, the aircraft must not be made the object of attack until all other
353 GWS-SEA art. 38 (“By agreement amongst the Parties to the conflict, neutral observers may be placed on board
such ships to verify the equipment carried.”).
354 GWS-SEA art. 38 (“For this purpose, free access to the equipment shall be given.”).
355 GWS art. 36 (“Medical aircraft, that is to say, aircraft exclusively employed for the removal of wounded and sick
and for the transport of medical personnel and equipment, shall not be attacked, but shall be respected by the
belligerents, while flying at heights, times and on routes specifically agreed upon between the belligerents
concerned.”); GWS-SEA art. 39 (“Medical aircraft, that is to say, aircraft exclusively employed for the removal of
the wounded, sick and shipwrecked, and for the transport of medical personnel and equipment, may not be the object
of attack, but shall be respected by the Parties to the conflict, while flying at heights, at times and on routes
specifically agreed upon between the Parties to the conflict concerned.”).
356 GWS-SEA COMMENTARY 216-17 (“The solution adopted makes any future use of protected medical aircraft
dependent on the conclusion of an agreement between the belligerents. As it will be a matter of fixing routes and
times of flights, such agreements will no doubt usually be made for each specific case and by a simple exchange of
communications between the military commands. But there might also be an agreement of longer duration. If there
is no agreement, belligerents will be able to use medical aircraft only at their own risk. It is, however, to be hoped
that in such cases the enemy will not resort to extreme measures until he has exhausted all other means of control at
his disposal.”).
357 Michael J. Matheson, Deputy Legal Adviser, Department of State, Remarks on the United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions at the
Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law
(Jan. 22, 1987), 2 AMERICAN UNIVERSITY JOURNAL OF INTERNATIONAL LAW AND POLICY 419, 423-24 (1987) (“We
support the principle that known medical aircraft be respected and protected when performing their humanitarian
functions. That is a rather general statement of what is reflected in many, but not all, aspects of the detailed rules in
articles 24 through 31, which include some of the more useful innovations in the Protocol.”).
358 Refer to § 5.7.4.1 (Military Equipment and Bases).
466
means of control (such as directing the aircraft to land and submit to search) have been
exhausted.359
A medical aircraft that is not flying pursuant to a special agreement that seeks to claim
protection as medical aircraft shall make every effort to identify itself and to inform the enemy
State of its status and its operations, such as its flight times and routes.360 For example, an
unknown aircraft within a theater of military operations would often be reasonably presumed to
be a military objective, and the aircraft must take affirmative steps to rebut this presumption.361
In order to maintain its entitlement to protection, such aircraft must obey the directions of the
enemy State, such as directions to land and to submit to search.
7.14.2 Exclusively Employed for the Removal of the Wounded, Sick, or Shipwrecked,
and for the Transport of Medical Personnel and Equipment. In order to receive protection as
medical aircraft, the aircraft must be exclusively employed for the removal of wounded, sick, or
shipwrecked combatants and for the transport of medical personnel and equipment.
For example, such aircraft, while designated or operating as medical aircraft, may not be
used also for military purposes, such as to transport able-bodied combatants or to carry
ammunition to combat forces.362
7.14.2.1 Conversion of Aircraft To and From Use Under a Special Agreement for
Medical Purposes. If medical aircraft are flying pursuant to an agreement, it is not necessary
that the aircraft should have been specially built and equipped for medical purposes.363 There is
359 1976 AIR FORCE PAMPHLET 110-31 (“Generally, a medical aircraft (identified as such) should not be attacked
unless under the circumstances at the time it represents an immediate military threat and other methods of control
are not available.”).
360 Consider AP I art. 27(2) (“A medical aircraft which flies over an area physically controlled by an adverse Party
without, or in deviation from the terms of, an agreement provided for in paragraph 1, either through navigational
error or because of an emergency affecting the safety of the flight, shall make every effort to identify itself and to
inform the adverse Party of the circumstances. As soon as such medical aircraft has been recognized by the adverse
Party, that Party shall make all reasonable efforts to give the order to land or to alight on water, referred to in Article
30, paragraph 1, or to take other measures to safeguard its own interests, and, in either case, to allow the aircraft
time for compliance, before resorting to an attack against the aircraft”).
361 Cf. BOTHE, PARTSCH, & SOLF, NEW RULES 155 (AP I art. 27, ¶2.2) (“The question then arises whether an aircraft
which is operating without such agreement (or in deviation from the terms of such agreement) is a legitimate target,
a military objective within the meaning of Art. 52, para. 2. Article 27, para. 2, is based on the (correct) assumption
that it is, even if it is a true medical aircraft. … An aircraft flying over areas controlled by an adverse Party is, in
case of doubt, a military objective. Anything else is unrealistic.”).
362 Compare § 7.12.2.2 (No Use for Military Purposes). For example, First Lieutenant Edward R. Cummings, The
Juridical Status of Medical Aircraft Under the Conventional Laws of War, 66 MILITARY LAW REVIEW 105, 115
(1974) (“It has been said that during the Second World War ‘Article 18 [of the 1929 GWS] was … more or less a
dead letter,’ even though air evacuation flights were used extensively during the war. One and a half million
Americans alone were evacuated by air during the war. The United States primarily used aircraft that were not
devoted exclusively to the care or the wounded and sick. It was able to do so because of its air supremacy. Even
though these aircraft would not have been entitled to juridical protection under the 1929 Geneva Convention, none
of the aircraft used to convey casualties ‘suffered any mishap during the war.’”) (ellipsis in original).
363 1956 FM 27-10 (Change No. 1 1976) ¶237b (“It is not necessary that the aircraft should have been specially built
and equipped for medical purposes.”).
467
no objection to converting ordinary aircraft into medical aircraft for use under a special
agreement or to using medical aircraft that have been used under a special agreement for other
purposes, provided the distinctive markings are removed.364
7.14.2.2 Search, Rescue, or Other Recovery Excluded. Medical aircraft may
engage in the removal of wounded, sick, or shipwrecked combatants. However, medical aircraft
may neither prevent the capture of combatants by enemy military forces nor otherwise interfere
with enemy military operations.365 Therefore, medical aircraft do not include combat search and
rescue aircraft, and medical aircraft should not engage in such activities lest they forfeit the
special protection afforded by the GWS or GWS-Sea.366 Special agreements between the
opposing forces, however, may provide protection to aircraft engaged in search, rescue, or other
recovery missions.
7.14.3 Markings on Medical Aircraft. Medical aircraft shall bear, clearly marked, the
distinctive emblem (prescribed in Article 38 of the GWS and Article 41 of the GWS-Sea),
together with their national colors, on their lower, upper, and lateral surfaces.367
They shall be provided with any other markings or means of identification that may be
agreed upon between the belligerents upon the outbreak or during the course of hostilities.368
7.14.4 Prohibition on Flights Over Enemy or Enemy-Occupied Territory. Unless
otherwise agreed, flights over enemy or enemy-occupied territory are prohibited.369 If flying
364 1956 FM 27-10 (Change No. 1 1976) ¶237b (“There is no objection to converting ordinary aircraft into medical
aircraft or to using former medical aircraft for other purposes, provided the distinctive markings are removed.”).
365 Compare § 7.12.2.3 (No Hampering the Movement of Combatants); § 4.9.2.3 (Exclusively Engaged in
Humanitarian Duties).
366 XI OFFICIAL RECORDS OF THE CDDH 503 (CDDH/II/SR.45, ¶10) (“Mr. SOLF (United States of America)
recalled that 105 years previously, 160 wounded soldiers of France had been successfully evacuated from besieged
Paris by balloon, thus for the first time making rapid medical evacuation by air a reality. It was an undisputed
medical fact that the sooner a badly wounded person came under a surgeon’s care, the better were his chances of
recovery and survival. It was also recognized as an undisputed military fact that medical aircraft posed a security
threat if they were used for military reconnaissance. Accordingly, throughout the history of the development of
medical aircraft, their role in the search of the battlefield for wounded had been restricted.”). Consider AP I art.
28(4) (“While carrying out the flights referred to in Articles 26 and 27, medical aircraft shall not, except by prior
agreement with the adverse Party, be used to search for the wounded, sick and shipwrecked.”).
367 GWS art. 36 (“They shall bear, clearly marked, the distinctive emblem prescribed in Article 38, together with
their national colours, on their lower, upper and lateral surfaces.”); GWS-SEA art. 39 (“They shall be clearly marked
with the distinctive emblem prescribed in Article 41, together with their national colours, on their lower, upper and
lateral surfaces.”).
368 GWS art. 36 (“They shall be provided with any other markings or means of identification that may be agreed
upon between the belligerents upon the outbreak or during the course of hostilities.”); GWS-SEA art. 39 (“They shall
be provided with any other markings or means of identification which may be agreed upon between the Parties to
the conflict upon the outbreak or during the course of hostilities.”).
369 GWS art. 36 (“Unless agreed otherwise, flights over enemy or enemy-occupied territory are prohibited.”); GWS-
SEA art. 39 (same).
468
pursuant to an agreement, however, medical aircraft are to receive protection when flying over
enemy or enemy-occupied territory.370
7.14.5 Landing and Inspection of Military Medical Aircraft. Medical aircraft shall obey
every summons to land (including water landings if the aircraft is equipped for them).371 In the
event of a landing thus imposed, the aircraft with its occupants may continue its flight after
examination, if any.372
7.14.5.1 Treatment of Personnel in the Event of Involuntary Landing in Enemy or
Enemy-Occupied Territory. In the event of an involuntary landing in enemy or enemy-occupied
territory (including a water landing), the wounded and sick, as well as the crew of the aircraft,
shall be POWs.373 The medical personnel shall be treated according to Article 24 and the
Articles following of the GWS, and Articles 36 and 37 of the GWS-Sea.374
7.14.6 Belligerent Military Medical Aircraft in Neutral Territory. Subject to conditions
set by the neutral Powers, medical aircraft of parties to the conflict may fly over the territory of
neutral Powers, land on it in case of necessity, or use it as a port of call.375 They shall give
neutral Powers prior notice of their passage over the said territory, and obey every summons to
alight, on land or water.376 They will be immune from attack only when flying on routes, at
heights, and at times specifically agreed upon between the parties to the conflict and the neutral
Power concerned.377
370 Consider AP I art. 27 (1) (“The medical aircraft of a Party to the conflict shall continue to be protected while
flying over land or sea areas physically controlled by an adverse Party, provided that prior agreement to such flights
has been obtained from the competent authority of that adverse Party.”).
371 GWS art. 36 (“Medical aircraft shall obey every summons to land.”); GWS-SEA art. 39 (“Medical aircraft shall
obey every summons to alight on land or water.”).
372 GWS art. 36 (“In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after
examination, if any.”); GWS-SEA art. 39 (“In the event of having thus to alight, the aircraft with its occupants may
continue its flight after examination, if any.”).
373 GWS art. 36 (“In the event of an involuntary landing in enemy or enemy-occupied territory, the wounded and
sick, as well as the crew of the aircraft shall be prisoners of war.”); GWS-SEA art. 39 (“In the event of alighting
involuntarily on land or water in enemy or enemy occupied territory, the wounded, sick and shipwrecked, as well as
the crew of the aircraft shall be prisoners of war.”).
374 GWS art. 36 (“The medical personnel shall be treated according to Article 24 and the Articles following.”);
GWS-SEA art. 39 (“The medical personnel shall be treated according to Articles 36 and 37.”).
375 GWS art. 37 (“Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may
fly over the territory of neutral Powers, land on it in case of necessity, or use it as a port of call.”); GWS-SEA art. 40
(“Subject to the provisions of the second paragraph, medical aircraft of Parties to the conflict may fly over the
territory of neutral Powers, land thereon in case of necessity, or use it as a port of call.”).
376 GWS art. 37 (“They shall give the neutral Powers previous notice of their passage over the said territory and
obey all summons to alight, on land or water.”); GWS-SEA art. 40 (“They shall give neutral Powers prior notice of
their passage over the said territory, and obey every summons to alight, on land or water.”).
377 GWS art. 37 (“They will be immune from attack only when flying on routes, at heights and at times specifically
agreed upon between the Parties to the conflict and the neutral Power concerned.”); GWS-SEA art. 40 (same).
469
7.14.6.1 Conditions Set by Neutral Powers. The neutral Powers may, however,
place conditions or restrictions on the passage or landing of medical aircraft on their territory.378
Such possible conditions or restrictions shall be applied equally to all parties to the conflict.379
7.14.6.2 Detention of the Wounded, Sick, or Shipwrecked. Unless otherwise
agreed between the neutral Powers and the parties to the conflict, the wounded, sick, or
shipwrecked who are disembarked with the consent of the local authorities on neutral territory by
medical aircraft shall be detained by the neutral Power, where so required by international law,
in such a manner that they cannot again take part in operations of war.380 The cost of their
accommodation and internment shall be borne by the Power on which they depend.381
7.15 DISPLAY OF THE DISTINCTIVE EMBLEM TO FACILITATE IDENTIFICATION
The GWS and GWS-Sea contemplate that the distinctive emblem, usually a red cross on
a white background, will be used to facilitate the identification of the persons and objects
protected by the GWS and GWS-Sea.382 It helps identify protected persons and objects (e.g.,
medical and religious personnel, medical transports, and medical facilities), but does not itself
confer on them, or by its absence deprive them of, legal protection. The use of the distinctive
emblem to facilitate protection is to take place under the direction of the competent military
authority. The misuse of the distinctive emblem is prohibited.
378 GWS art. 37 (“The neutral Powers may, however, place conditions or restrictions on the passage or landing of
medical aircraft on their territory.”); GWS-SEA art. 40 (same).
379 GWS art. 37 (“Such possible conditions or restrictions shall be applied equally to all Parties to the conflict.”);
GWS-SEA art. 40 (same).
380 GWS art. 37 (“Unless agreed otherwise between the neutral Power and the Parties to the conflict, the wounded
and sick who are disembarked, with the consent of the local authorities, on neutral territory by medical aircraft, shall
be detained by the neutral Power, where so required by international law, in such a manner that they cannot again
take part in operations of war.”); GWS-SEA art. 40 (“Unless otherwise agreed between the neutral Powers and the
Parties to the conflict, the wounded, sick or shipwrecked who are disembarked with the consent of the local
authorities on neutral territory by medical aircraft shall be detained by the neutral Power, where so required by
international law, in such a manner that they cannot again take part in operations of war.”).
381 GWS art. 37 (“The cost of their accommodation and internment shall be borne by the Power on which they
depend.”); GWS-SEA art. 40 (same).
382 See GWS-SEA COMMENTARY 235 (“In principle, a red cross on a white ground should be displayed on the
buildings, persons, vehicles and objects protected by the Convention.”).
470
7.15.1 The Distinctive Emblems: Red Cross, Crescent, and Crystal. To facilitate visual
identification of medical and religious personnel, and medical units, facilities, transports, and
equipment, four distinctive emblems have been recognized in treaties to which the United States
is a Party. As displayed below, they are 1) a red cross; 2) a red crescent; 3) a red crystal; and 4)
a red lion and sun. Each is displayed on a white background.
The Distinctive Emblems
Red Cross Red Crescent Red Crystal Red Lion and Sun (withdrawn)
7.15.1.1 Red Cross. “As a compliment to Switzerland,” the heraldic emblem of
the red cross on a white ground formed by reversing the Federal colors is retained as the emblem
and distinctive sign of the Medical Services of armed forces.383 The explanation that the red
cross is used as a compliment to Switzerland was added to emphasize that the red cross is not
intended to have religious significance.384 The red cross has long been used to identify medical
personnel during armed conflict.385
7.15.1.2 Red Crescent, and Red Lion and Sun. In the case of countries that
already use, in place of the red cross, the emblem of the red crescent or the emblem of the red
lion and sun on a white ground, those emblems are also recognized by the terms of the GWS and
GWS-Sea.386
383 GWS art. 38 (“As a compliment to Switzerland, the heraldic emblem of the red cross on a white ground formed
by reversing the Federal colours, is retained as the emblem and distinctive sign of the Medical Services of armed
forces.”).
384 GWS COMMENTARY 303 (“The phrase stating that the red cross emblem was formed, as a compliment to
Switzerland, by reversing the Federal colours was introduced into the Geneva Convention by the Diplomatic
Conference of 1906. ‘This tribute in 1906’, wrote Paul Des Gouttes, the eminent commentator on the Geneva
Convention, ‘had also another object: to confirm officially and explicitly that the emblem had no religious
significance’.”). See also AP III preamble (“Stressing that the distinctive emblems are not intended to have any
religious, ethnic, racial, regional or political significance,”).
385 See, e.g., Convention for the Amelioration of the Wounded in Armies in the Field, art. 7, Aug. 22, 1864, 22
STAT. 940, 944 (“A distinctive and uniform flag shall be adopted for hospitals, ambulances and evacuations. It
must, on every occasion, be accompanied by the national flag. An arm-badge (brassard) shall also be allowed for
individuals neutralized, but the delivery thereof shall be left to military authority. The flag and arm-badge shall bear
a red cross on a white ground.”).
386 GWS art. 38 (“Nevertheless, in the case of countries which already use as emblem, in place of the red cross, the
red crescent or the red lion and sun on a white ground, those emblems are also recognized by the terms of the
present Convention.”); GWS-SEA art. 41 (“Nevertheless, in the case of countries which already use as emblem, in
place of the red cross, the red crescent or the red lion and sun on a white ground, these emblems are also recognized
by the terms of the present Convention.”).
471
7.15.1.3 Red Crystal. AP III recognizes an additional distinctive emblem in
addition to, and for the same purposes as, the distinctive emblems of the Geneva Conventions,
which, for parties to AP III, shall enjoy equal status to the other emblems.387
This additional distinctive emblem, composed of a red frame in the shape of a square on
edge on a white ground, shall conform to the illustration in the Annex to AP III.388
This distinctive emblem is referred to in AP III as the “third Protocol emblem”389 but is
often called the red crystal.
The conditions for use of and respect for the third Protocol emblem are identical to those
for the distinctive emblems established by the 1949 Geneva Conventions and, where applicable,
AP I and AP II.390
AP III further provides for use of the Red Crystal for indicative purposes by national
societies of the Parties to AP III. Such uses for indicative purposes by national societies are uses
of the red crystal that do not indicate protection under the AP III, the GWS, or the GWS-Sea, but
that indicate an association with the Red Cross movement.391
7.15.1.4 State Discretion Among Emblems. Although the GWS contemplates that
the emblem of the red crescent and the emblem of the red sun and lion will be used only in States
that already used them before ratifying the 1949 Geneva Conventions, AP III provides that the
distinctive emblems of the Geneva Conventions shall enjoy equal status.392 In addition, AP III
provides that the medical services and religious personnel of armed forces of Parties to AP III
387 AP III art. 2(1) (“This Protocol recognizes an additional distinctive emblem in addition to, and for the same
purposes as, the distinctive emblems of the Geneva Conventions. The distinctive emblems shall enjoy equal
status.”).
388 AP III art. 2(2) (“This additional distinctive emblem, composed of a red frame in the shape of a square on edge
on a white ground, shall conform to the illustration in the Annex to this Protocol.”).
389 AP III art. 2(2) (“This distinctive emblem is referred to in this Protocol as the ‘third Protocol emblem’.”).
390 AP III art. 2(3) (“The conditions for use of and respect for the third Protocol emblem are identical to those for the
distinctive emblems established by the Geneva Conventions and, where applicable, the 1977 Additional
Protocols.”).
391 AP III art. 3 (“1. National Societies of those High Contracting Parties which decide to use the third Protocol
emblem may, in using the emblem in conformity with relevant national legislation, choose to incorporate within it,
for indicative purposes: a) a distinctive emblem recognized by the Geneva Conventions or a combination of these
emblems; or b) another emblem which has been in effective use by a High Contracting Party and was the subject of
a communication to the other High Contracting Parties and the International Committee of the Red Cross through
the depositary prior to the adoption of this Protocol. Incorporation shall conform to the illustration in the Annex to
this Protocol.
2. A National Society which chooses to incorporate within the third Protocol emblem another emblem
in accordance with paragraph 1 above, may, in conformity with national legislation, use the designation of that
emblem and display it within its national territory. 3. National Societies may, in accordance with national
legislation and in exceptional circumstances and to facilitate their work, make temporary use of the distinctive
emblem referred to in Article 2 of this Protocol. 4. This Article does not affect the legal status of the distinctive
emblems recognized in the Geneva Conventions and in this Protocol, nor does it affect the legal status of any
particular emblem when incorporated for indicative purposes in accordance with paragraph 1 of this Article.”).
392 AP III art. 2(1) (“The distinctive emblems shall enjoy equal status.”).
472
may, without prejudice to their current emblems, make temporary use of any distinctive emblems
where this may enhance protection.393
Some States have adopted the red crescent, without objection by other States Parties,
even though their use of the red crescent did not predate the adoption of the GWS.394 Israel
ratified the 1949 Geneva Conventions with the reservation that it will use a Red Shield of David
as its distinctive sign.395
7.15.2 Control of Display by the Competent Military Authority. Under the direction of
the competent military authority, the emblem shall be displayed on the flags, armlets, and on all
equipment employed in the Medical Service.396 For example, under military regulations,
helmets or vehicles used by the Medical Service might bear the distinctive emblem to facilitate
the respect and protection of medical personnel by the enemy.397
393 AP III art. 2(4) (“The medical services and religious personnel of armed forces of High Contracting Parties may,
without prejudice to their current emblems, make temporary use of any distinctive emblem referred to in paragraph
1 of this Article where this may enhance protection.”).
394 For example, H. Beer, Secretary General, League of Red Cross Societies, and J. Moreillon, Department of
Principles and Law, International Committee of the Red Cross, Adoption of the Red Crescent by the Islamic
Republic of Iran, Circular No. 72 (Nov. 5, 1980), reprinted in 20 INTERNATIONAL REVIEW OF THE RED CROSS, 316-
17 (1980) (“On 4 July 1980 the Islamic Republic of Iran informed the International Committee of the Red Cross and
the League of Red Cross Societies of its decision to adopt the red crescent instead of the red lion and sun as the
distinctive sign of its armed forces' medical service. … On 4 September the Iranian Authorities notified the Swiss
Government, the depositary of the Geneva Conventions, of the adoption by the Islamic Republic of Iran of the red
crescent, and asked it to convey its decision to the States parties to the Geneva Conventions. This the Swiss
Government did on 20 October.”).
395 See Israel, Statement on Signature of the GWS, Aug. 12, 1949, 75 UNTS 436 (“Subject to the reservation that,
while respecting the inviolability of the distinctive signs and emblems of the Convention, Israel will use the Red
Shield of David as the emblem and distinctive sign of the medical services of her armed forces.”); Israel, Statement
on Ratification of the GWS, Jul. 6, 1952, 96 UNTS 323 (“The instrument confirms the reservations made by Israel
upon signature of the Convention.”); Israel, Statement on Signature of the GWS-Sea, Aug. 12, 1949, 75 UNTS 438
(“Subject to the reservation that, while respecting the inviolability of the distinctive signs and emblems of the
Convention, Israel will use the Red Shield of David on the flags, armlets and on all equipment (including hospital
ships), employed in the medical service.”); Israel, Statement on Ratification of the GWS-Sea, 96 UNTS 324 (Jul. 6,
1952) (“The instrument confirms the reservations made by Israel upon signature of the Convention.”); Israel,
Statement on Signature of the GC, Aug. 12, 1949, 75 UNTS 438 (“Subject to the reservation that, while respecting
the inviolability of the distinctive signs and emblems provided for in Article 38 of the Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, Israel
will use the Red Shield of David as the emblem and distinctive sign provided for in this Convention.”); Israel,
Statement on Ratification of the GC, Jul. 6, 1952, 96 UNTS 326 (“The instrument confirms the reservations made by
Israel upon signature of the Convention.”).
396 GWS art. 39 (“Under the direction of the competent military authority, the emblem shall be displayed on the
flags, armlets and on all equipment employed in the Medical Service.”); GWS-SEA art. 41 (“Under the direction of
the competent military authority, the emblem of the red cross on a white ground shall be displayed on the flags,
armlets and on all equipment employed in the Medical Service.”).
397 Consider AP I Amended Annex I art. 5(4) (“Medical and religious personnel carrying out their duties in the battle
area shall, as far as possible, wear headgear and clothing bearing the distinctive emblem.”).
473
7.15.2.1 Removal or Obscuration of the Distinctive Emblem. The display of the
distinctive emblem is under the direction of the competent military authority.398 Thus, the
military command may authorize the removal or obscuring of the distinctive emblem for tactical
purposes, such as camouflage.399 Similarly, it would be appropriate for the distinctive emblem
to be removed if it is assessed that enemy forces will fail to respect the emblem and seek to
attack medical personnel; display of the emblem in such circumstances would not be considered
“feasible” because in that instance it would not result in a humanitarian benefit.400
In the practice of the United States, removal or obscuration of the distinctive emblem has
generally been controlled by the responsible major tactical commander, such as a brigade
commander or higher.401
7.15.3 Significance of the Display of the Distinctive Emblem.
7.15.3.1 Distinctive Emblem Facilitates Protection. The purpose of the display of
the distinctive emblem is to facilitate the identification of protected status.402 The absence of the
distinctive emblem may increase the risk that enemy forces will not recognize the protected
status of military medical and religious personnel and other protected persons and objects, and
attack them in error.
398 GWS-SEA COMMENTARY 230 (“The initial phrase of the present Article is most important: use of the emblem is
to be ‘under the direction of the competent military authority’. This wording shows that it is the military command
which controls the emblem and can give or withhold permission to use it. Moreover, only that command can order a
medical unit to be camouflaged.”). See also Frederic de Mulinen, Head of Division, International Committee of the
Red Cross, Signalling and Identification of Medical Personnel and Material, 12 INTERNATIONAL REVIEW OF THE
RED CROSS 479, 481 (1972) (“Distinctive emblems may not be displayed without the authorization of the State or of
a State authority. … The State or, by the delegation of its competency, the military command therefore ‘controls the
emblem’ and is free to permit or prohibit the use of the distinctive emblem. It may even prohibit its use entirely
without thereby violating the Conventions. In that event, actual protection would obviously be very small.”).
399 GWS-SEA COMMENTARY 228-29 (“In the first place there is no obligation on a belligerent to mark his medical
units with the emblem. Sometimes military commanders have camouflaged such units—i.e. have abstained from
marking them and even tried to conceal them—in order to conceal the presence or real strength of their forces. This
is more likely to occur on land than at sea.”).
400 Refer to § 5.3.3.2 (What Precautions Are Feasible).
401 For example, DEPARTMENT OF THE ARMY REGULATION 750-1, Army Material Maintenance Policy, ¶8-9c(17)
(Sept. 2013) (“Under tactical conditions, when requirements for concealment outweigh those for recognition, all
conspicuous markings may be obscured or removed by the authority and at the discretion of the major organization
commander present. Protective red cross markings may be obscured only at the direction of the responsible major
tactical commander.”); DEPARTMENT OF THE ARMY TECHNICAL MANUAL 43-0139, Painting Instructions for Army
Material, ¶1-3g (Jan. 1990) (“Under tactical conditions, when requirements for concealment outweigh those for
recognition, all conspicuous markings may be obscured or removed by the authority and at the discretion of the
major organization commander present. Protective red cross markings may be obscured only at the direction of the
responsible major tactical commander.”).
402 AP III preamble (“Recalling that the obligation to respect persons and objects protected by the Geneva
Conventions and the Protocols additional thereto derives from their protected status under international law and is
not dependent on use of the distinctive emblems, signs or signals,”). Consider AP I Amended Annex I art. 1(1)
(“The regulations concerning identification in this Annex implement the relevant provisions of the Geneva
Conventions and the Protocol; they are intended to facilitate the identification of personnel, material, units,
transports and installations protected under the Geneva Conventions and the Protocol.”).
474
7.15.3.2 Distinctive Emblem Does Not in and of Itself Establish the Right to
Protection. The distinctive emblem does not in and of itself establish the right to protection.403
Rather, the right to protection is established by the fact that the units, facilities, or personnel,
have met the applicable requirements for protected status.404
Thus, if the distinctive emblem is displayed by forces not entitled to protection, the
display of the emblem does not confer protection and those forces may be made the object of
attack. On the other hand, if personnel who are entitled to protection are recognized as such,
they remain entitled to respect and protection even if the distinctive emblem is not displayed.405
7.15.4 Prohibitions on Unauthorized Uses of the Distinctive Emblem. With the exception
of certain cases mentioned in Article 44 of the GWS (discussed below), the emblem of the Red
Cross on a white ground and the words “Red Cross” or “Geneva Cross” may not be employed,
either in time of peace or in time of war, except to indicate or to protect the medical units and
establishments, the personnel, and material protected by the GWS and other Conventions dealing
with similar matters (e.g., the GWS-Sea).406 The same shall apply to the emblems mentioned in
the second paragraph of Article 38 of the GWS (i.e., the emblem of red crescent and the emblem
of the red lion and sun), in respect of the countries that use them.407
The distinguishing signs referred to in Article 43 of the GWS-Sea (i.e., certain red
crosses on white backgrounds) may only be used, whether in time of peace or war, for indicating
or protecting the ships mentioned in Article 43, except as may be provided in any other
international Convention (e.g., the GWS) or by agreement between all the parties to the conflict
concerned.408
In particular, it is prohibited to use the distinctive emblem:
(1) while engaging in attacks;
(2) in order to shield, favor, or protect one’s own military operations; or (3) to impede enemy
403 See GWS COMMENTARY 307, 312, 330. Consider AP I Amended Annex I art. 1(2) (“These rules do not in and of
themselves establish the right to protection. This right is governed by the relevant articles in the Conventions and
the Protocol.”).
404 Refer to, e.g., § 4.9.2 (Requirements for Military Medical and Religious Status); § 7.12.1.1 (Military Hospital
Ships); § 7.14.2 (Exclusively Employed for the Removal of the Wounded, Sick, or Shipwrecked, and for the
Transport of Medical Personnel and Equipment).
405 GWS-SEA COMMENTARY 229 (“Obviously, respect for camouflaged units will be purely theoretical. The enemy
can respect a medical unit only if he knows of its presence. If the unit is exposed to long-range enemy fire, it will
thus lose a large part of its security. If however, the enemy approaches, for instance, and recognizes the the [sic]
medical unit as such, he must obviously respect it.”).
406 GWS art. 44 (“With the exception of the cases mentioned in the following paragraphs of the present Article, the
emblem of the Red Cross on a white ground and the words ‘Red Cross’, or ‘Geneva Cross’ may not be employed,
either in time of peace or in time of war, except to indicate or to protect the medical units and establishments, the
personnel and material protected by the present Convention and other Conventions dealing with similar matters.”).
407 GWS art. 44 (“The same shall apply to the emblems mentioned in Article 38, second paragraph, in respect of the
countries which use them.”).
408 GWS-SEA art. 44 (“The distinguishing signs referred to in Article 43 can only be used, whether in time of peace
or war, for indicating or protecting the ships therein mentioned, except as may be provided in any other international
Convention or by agreement between all the Parties to the conflict concerned.”).
475
military operations.409 For example, using an ambulance marked with the Red Cross to mount a
surprise attack against enemy forces would be prohibited.410
Certain non-military uses of the distinctive emblem are authorized under the GWS and
GWS-Sea: (1) use by National Red Cross Societies and other Authorized Voluntary Aid
Societies; (2) use by international Red Cross organizations and their duly authorized personnel;
and (3) use by ambulances and free aid stations.
7.15.4.1 Use by National Red Cross Societies and Other Authorized Voluntary
Aid Societies. The National Red Cross Societies and other Authorized Voluntary Aid Societies
designated in Article 26 of the GWS shall have the right to use the distinctive emblem conferring
the protection of the GWS only within the framework of paragraph 1 of Article 44 of the
GWS.411
Furthermore, National Red Cross (Red Crescent, Red Lion and Sun) Societies may, in
time of peace, in accordance with their national legislation, make use of the name and emblem of
the Red Cross for their other activities that are in conformity with the principles laid down by the
International Red Cross Conferences.412 When those activities are carried out in time of war, the
conditions for the use of the emblem shall be such that it cannot be considered as conferring the
protection of the GWS; the emblem shall be comparatively small in size and may not be placed
on armlets or on the roofs of buildings.413 This use of the emblem is simply to indicate an
association with the Red Cross movement.414
409 Refer to § 5.24 (Improper Use of Certain Signs).
410 For example, Trial of Heinz Hagendorf, XIII U.N. LAW REPORTS 146 (U.S. Intermediate Military Government
Court, Dachau, Germany, Aug. 8-9, 1946) (“The accused, Heinz Hagendorf, a German soldier, was tried by a United
states Intermediate Military Government Court at Dachau, Germany, being charged with having ‘wrongfully used
the Red Cross emblem in a combat zone by firing a weapon at American soldiers from an enemy ambulance
displaying such emblem.’”).
411 GWS art. 44 (“With the exception of the cases mentioned in the following paragraphs of the present Article, the
emblem of the Red Cross on a white ground and the words ‘Red Cross’, or ‘Geneva Cross’ may not be employed,
either in time of peace or in time of war, except to indicate or to protect the medical units and establishments, the
personnel and material protected by the present Convention and the other Conventions dealing with similar matters.
The same shall apply to the emblems mentioned in Article 38, second paragraph, in respect of the countries which
use them. The National Red Cross Societies and other Societies designated in Article 26 shall have the right to use
the distinctive emblem conferring the protection of the Convention only within the framework of the present
paragraph.”).
412 GWS art. 44 (“Furthermore, National Red Cross (Red Crescent, Red Lion and Sun) Societies may, in time of
peace, in accordance with their national legislation, make use of the name and emblem of the Red Cross for their
other activities which are in conformity with the principles laid down by the International Red Cross Conferences.”).
413 GWS art. 44 (“When those activities are carried out in time of war, the conditions for the use of the emblem shall
be such that it cannot be considered as conferring the protection of the Convention; the emblem shall be
comparatively small in size and may not be placed on armlets or on the roofs of buildings.”).
414 GWS COMMENTARY 325 (“In the second case, the sign is purely indicatory. It is only used to show that a person
or object is connected with the Red Cross, without implying the protection of the Convention or any intention to
invoke it. It is, for example, used in this way to draw public attention to premises or publications. The emblem
should then, as a rule, be small in size, and the conditions under which it is used should preclude all risk of its being
confused with the protective sign.”).
476
7.15.4.2 Use by International Red Cross Organizations and Their Duly
Authorized Personnel. The international Red Cross organizations and their duly authorized
personnel shall be permitted to make use, at all times, of the emblem of the Red Cross on a white
ground.415
7.15.4.3 Use by Ambulances and Free Aid Stations. As an exceptional measure,
in conformity with national legislation and with the express permission of one of the National
Red Cross (Red Crescent, Red Lion and Sun) Societies, the emblem of the GWS may be
employed in time of peace to identify vehicles used as ambulances and to mark the position of
aid stations exclusively assigned to the purpose of giving free treatment to the wounded or
sick.416
7.16 PROTECTION OF CIVILIANS WHO ARE WOUNDED, SICK, INFIRM, OR EXPECTANT MOTHERS
Wounded and sick civilians, as well as the infirm, and expectant mothers, shall be the
object of particular protection and respect.417 The infirm and expectant mothers are given special
consideration along with the wounded and sick because they are vulnerable and also do not take
part in hostilities.418
7.16.1 Obligation to Facilitate Efforts to Search for Civilians Who Are Wounded, Killed,
Shipwrecked, or Exposed to Grave Danger. As far as military considerations allow, each party
to the conflict shall facilitate the steps taken to search for the killed and wounded, to assist the
shipwrecked and other persons exposed to grave danger, and to protect them against pillage and
ill-treatment.419
The obligation with respect to civilians who are killed, wounded, shipwrecked, and
exposed to grave danger is framed slightly differently from the corresponding obligation with
respect to military personnel who are wounded, sick, and shipwrecked. These differences may
be attributed to the fact that civilian authorities would often be responsible for collecting and
bringing in civilian casualties.420 However, as a practical matter, the armed forces may be asked
415 GWS art. 44 (“The international Red Cross organizations and their duly authorized personnel shall be permitted
to make use, at all times, of the emblem of the Red Cross on a white ground.”).
416 GWS art. 44 (“As an exceptional measure, in conformity with national legislation and with the express
permission of one of the National Red Cross (Red Crescent, Red Lion and Sun) Societies, the emblem of the
Convention may be employed in time of peace to identify vehicles used as ambulances and to mark the position of
aid stations exclusively assigned to the purpose of giving free treatment to the wounded or sick.”).
417 GC art. 16 (“The wounded and sick, as well as the infirm, and expectant mothers, shall be the object of particular
protection and respect.”).
418 GC COMMENTARY 134-35 (“In addition to the wounded and sick the Diplomatic Conference mentions the infirm
and also expectant mothers, as those persons are in a state of weakness which demands special consideration. Their
being placed on the same footing as the wounded and sick is fully justified by the fact that they belong to categories
of the population which do not take part in hostilities.”).
419 GC art. 16 (“As far as military considerations allow, each Party to the conflict shall facilitate the steps taken to
search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave danger, and to
protect them against pillage and ill-treatment.”).
420 GC COMMENTARY 135 (“It is true that saving civilians is the responsibility of the civilian authorities rather than
of the military. That is why the wording of Article 16 (‘each Party to the conflict shall facilitate the steps’ …) is
477
to lead such efforts or to carry out a joint relief operation with civilian authorities.421 For
example, the U.S. armed forces often have undertaken to care for the civilian wounded and
sick.422
7.17 CIVILIAN HOSPITALS AND THEIR PERSONNEL
During international armed conflict, civilian hospitals organized to give care to the
wounded and sick, the infirm, and maternity cases, may in no circumstances be the object of
attack, but shall at all times be respected and protected by the parties to the conflict.423
7.17.1 Loss of Protection for Civilian Hospitals Used to Commit Acts Harmful to the
Enemy. The protection to which civilian hospitals are entitled shall not cease unless they are
used to commit, outside their humanitarian duties, acts harmful to the enemy.424
7.17.1.1 Acts Harmful to the Enemy. Civilian hospitals must avoid any
interference, direct or indirect, in military operations, such as the use of a hospital as a shelter for
able-bodied combatants or fugitives, as an arms or ammunition store, as a military observation
post, or as a center for liaison with combat forces.425 However, the fact that sick or wounded
slightly different from the corresponding Article in the First Geneva Convention (‘Parties to the conflict shall,
without delay … take all possible measures …’).”).
421 GC COMMENTARY 135-36 (“In actual practice, however, when it is necessary to search devastated areas, the
military and civilian bodies will usually carry out a joint relief operation covering all war casualties, civilians and
members of the armed forces, friends and enemies. This is the only attitude to adopt in work of this description
which consists, in short, not in helping soldiers on the one hand and civilians on the other, but simply in assisting
human beings plunged into suffering by a common destiny-human beings among whom all distinctions have been
wiped out by suffering.”).
422 For example, SANDERS MARBLE, SKILLED AND RESOLUTE: A HISTORY OF THE 12TH EVACUATION HOSPITAL AND
THE 212TH MASH, 1917-2006, 69-70 (2013) (“About two-thirds of patients cared for by the 12th were US military;
the other third were mainly Vietnamese but also included nonmilitary Americans and Free World Military
Assistance Forces personnel. Staff regularly dealt with the Vietnamese, both military and civilian, enemy and
friendly. There were wards set aside for enemy prisoners (who were stabilized, then transferred to hospitals at POW
camps) and civilians. Wounded South Vietnamese Army soldiers were also stabilized and transferred to hospitals
run by the Army of the Republic of Vietnam (ARVN). Civilian patients often stayed longer because the war
swamped the available hospitals for Vietnamese civilians. Some local civilians came to the hospital for care of
conditions not related to the war.”); id. at. 104 (“Almost immediately after the ground fighting ended [during the
1991 Persian Gulf War], more patients arrived: civilians, enemy prisoners, and Coalition and US troops. Despite
the influx, the 12th had to staff only 104 beds of its 400-bed maximum. At first the civilians were Kuwaitis, but by
March 23 Iraqi civilians began arriving, victims of the southern Iraqi rebellion against Saddam Hussein. The
civilians arrived in large batches, Chinook loads of 30 or 40 at a time. Not all were patients; families often
accompanied an injured member.”).
423 GC art. 18 (“Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases,
may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the
conflict.”).
424 GC art. 19 (“The protection to which civilian hospitals are entitled shall not cease unless they are used to commit,
outside their humanitarian duties, acts harmful to the enemy.”).
425 GC COMMENTARY 155 (“Such harmful acts would, for example, include the use of a hospital as a shelter for able-
bodied combatants or fugitives, as an arms or ammunition store, as a military observation post, or as a centre for
liaison with fighting troops. The sense will become still clearer when paragraph 2, below is considered, which
mentions two specific acts which are not to be regarded as being harmful to the enemy. One thing is certain.
478
members of the armed forces are nursed in these hospitals, or the presence of small arms and
ammunition taken from such combatants and not yet handed to the proper service, shall not be
considered acts harmful to the enemy.426
7.17.1.2 Due Warning Before Cessation of Protection. In addition, protection for
civilian hospitals may cease only after due warning has been given, naming, in all appropriate
cases, a reasonable time limit, and after such warning has remained unheeded.427
The obligation to refrain from use of force against a civilian medical facility acting in
violation of its mission and protected status without due warning does not prohibit the exercise
of the right of self-defense. There may be cases in which, in the exercise of the right of self-
defense, a warning is not “due” or a reasonable time limit is not appropriate. For example, forces
receiving heavy fire from a hospital may exercise their right of self-defense and return fire. Such
use of force in self-defense against medical units or facilities must be proportionate. For
example, a single enemy rifleman firing from a hospital window would warrant a response
against the rifleman only, rather than the destruction of the hospital.428
7.17.2 Identification of Protected Civilian Hospitals. The GC provides for civilian
hospitals to be identified with certificates and the distinctive emblem.
7.17.2.1 State-Issued Certificates for Civilian Hospitals. States that are parties to
a conflict shall provide all civilian hospitals with certificates showing that they are civilian
hospitals and that the buildings that they occupy are not used for any purpose that would deprive
these hospitals of protection in accordance with Article 19 of the GC.429
7.17.2.2 Markings of Civilian Hospitals With the Distinctive Emblem. Civilian
hospitals shall be marked by means of the distinctive emblem provided for in Article 38 of the
GWS, but only if authorized by the State.430
Civilian hospitals must observe, towards the enemy, the neutrality which they claim for themselves and which is
their right under the Convention. Standing outside the struggle, they must steadfastly refrain from any interference,
direct or indirect, in military operations.”).
426 GC art. 19 (“The fact that sick or wounded members of the armed forces are nursed in these hospitals, or the
presence of small arms and ammunition taken from such combatants and not yet handed to the proper service, shall
not be considered to be acts harmful to the enemy.”).
427 GC art. 19 (“Protection may, however, cease only after due warning has been given, naming, in all appropriate
cases, a reasonable time limit, and after such warning has remained unheeded.”).
428 Compare § 7.10.3.2 (Due Warning Before Cessation of Protection).
429 GC art. 18 (“States which are Parties to a conflict shall provide all civilian hospitals with certificates showing that
they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would
deprive these hospitals of protection in accordance with Article 19.”).
430 GC art. 18 (“Civilian hospitals shall be marked by means of the emblem provided for in Article 38 of the Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August
12, 1949, but only if so authorized by the State.”).
479
The parties to the conflict shall, in so far as military considerations permit, take the
necessary steps to make the distinctive emblems indicating civilian hospitals clearly visible to
the enemy land, air, and naval forces in order to obviate the possibility of any hostile action.431
7.17.3 Location of Civilian Hospitals. In view of the dangers to which civilian hospitals
may be exposed by being close to military objectives, it is recommended that such hospitals be
situated as far as possible from such objectives.432
This provision of the GC was drafted because the protection for civilian hospitals in the
GC does not confer immunity on military objectives situated close to the hospital or restrict the
right to make such military objectives the object of attack.433
7.17.4 Protection of Civilian Hospital Personnel.
7.17.4.1 Civilian Hospital Personnel Who Are Regularly and Solely Engaged.
Persons regularly and solely engaged in the operation and administration of civilian hospitals,
including the personnel engaged in the search for, removal and transporting of, and caring for
wounded and sick civilians, the infirm, and maternity cases, shall be respected and protected at
all times.434 For example, a surgeon who works regularly in a hospital, but is not exclusively
employed there, would not be engaged “solely” in hospital duties and would consequently not be
covered by this provision, but could fall under the category of “other civilian hospital
personnel.”435
In occupied territory and in zones of military operations, civilian hospital personnel who
are regularly and solely engaged in hospital duties shall be recognizable by means of an identity
card certifying their status, bearing the photograph of the holder and embossed with the stamp of
the responsible authority, and also by means of a stamped, water-resistant armlet that they shall
431 GC art. 18 (“The Parties to the conflict shall, in so far as military considerations permit, take the necessary steps
to make the distinctive emblems indicating civilian hospitals clearly visible to the enemy land, air and naval forces
in order to obviate the possibility of any hostile action.”).
432 GC art. 18 (“In view of the dangers to which civilian hospitals may be exposed by being close to military
objectives, it is recommended that such hospitals be situated as far as possible from such objectives.”).
433 GC COMMENTARY 153 (“The last paragraph shows clearly that wide as that scope is, it is not intended to confer
immunity on military objectives situated close to a hospital or to restrict the right to attack them as such. It is for
that reason that the legal protection accorded to military hospitals must be accompanied by practical measures to
ensure that they are situated as far as possible from military objectives and to protect them from the accidental
consequences of attacks on such objectives. If that is not done the protection is very likely to be illusory, even if the
hospitals are clearly marked.”).
434 GC art. 20 (“Persons regularly and solely engaged in the operation and administration of civilian hospitals,
including the personnel engaged in the search for, removal and transporting of and caring for wounded and sick
civilians, the infirm and maternity cases, shall be respected and protected.”).
435 GC COMMENTARY 159 (“For example, a surgeon who works regularly in a hospital, but is not exclusively
employed there because he devotes part of his time to his private practice, or again, voluntary laboratory assistants
or auxiliaries, who only work at the hospital for part of the day, or for one or two days a week, would not be
engaged ‘solely’ in hospital duties and would consequently not be covered by paragraph 1.”).
480
wear on the left arm while carrying out their duties.436 This armlet shall be issued by the State
and shall bear the emblem provided for in Article 38 of the GWS.437
7.17.4.2 Other Civilian Hospital Personnel. Other personnel who are engaged in
the operation and administration of civilian hospitals shall also be entitled to respect and
protection and to wear the armlet while they are employed on such duties.438 The identity card
shall state the duties on which they are employed.439
7.17.4.3 List of Permanent and Temporary Civilian Hospital Personnel. The
management of each hospital shall at all times hold at the disposal of the competent national or
occupying authorities an up-to-date list of such personnel.440 This list should provide the names
of all hospital personnel, both permanent and temporary, and specify the duties of each of
them.441
7.18 LAND AND SEA CIVILIAN HOSPITAL CONVOYS
Convoys of vehicles or hospital trains on land or specially provided vessels on sea,
conveying wounded and sick civilians, the infirm, and maternity cases, shall be respected and
protected in the same manner as the hospitals provided for in Article 18 of the GC, and shall be
marked, with the consent of the State, by the display of the distinctive emblem provided for in
Article 38 of the GWS.442
The vehicles in a medical convoy need not be used permanently for medical purposes,
but while they are in the convoy, they are not to be used for other purposes.443
436 GC art. 20 (“In occupied territory and in zones of military operations, the above personnel shall be recognizable
by means of an identity card certifying their status, bearing the photograph of the holder and embossed with the
stamp of the responsible authority, and also by means of a stamped, water-resistant armlet which they shall wear on
the left arm while carrying out their duties.”).
437 GC art. 20 (“This armlet shall be issued by the State and shall bear the emblem provided for in Article 38 of the
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of
August 12, 1949.”).
438 GC art. 20 (“Other personnel who are engaged in the operation and administration of civilian hospitals shall be
entitled to respect and protection and to wear the armlet, as provided in and under the conditions prescribed in this
Article, while they are employed on such duties.”).
439 GC art. 20 (“The identity card shall state the duties on which they are employed.”).
440 GC art. 20 (“The management of each hospital shall at all times hold at the disposal of the competent national or
occupying authorities an up-to-date list of such personnel.”).
441 GC COMMENTARY 169 (“The management of every civilian hospital must keep an up-to-date nominal list of all
the hospital staff, both permanent and temporary, specifying the duties of each of them.”).
442 GC art. 21 (“Convoys of vehicles or hospital trains on land or specially provided vessels on sea, conveying
wounded and sick civilians, the infirm and maternity cases, shall be respected and protected in the same manner as
the hospitals provided for in Article 18, and shall be marked, with the consent of the State, by the display of the
distinctive emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field of August 12, 1949.”).
443 GC COMMENTARY 170 (“The word ‘vehicle’ must be taken in the broadest possible sense: it covers any means
of transport by land; it need not necessarily be used solely for medical purposes. It will be enough if it is so used
481
7.18.1 Protection of Civilian Hospital Convoys on the Same Basis as That of Civilian
Hospitals. The protection to which these convoys are entitled shall not cease unless they are
used to commit, outside their humanitarian duties, acts harmful to the enemy.444
As with civilian hospitals, medical convoys must maintain a strict abstention from any
direct or indirect participation in a hostile act in order to retain protection.445 However, the fact
that sick or wounded members of the armed forces are transported by these convoys, or the
presence of small arms and ammunition taken from such combatants and not yet handed to the
proper service, shall not be considered acts harmful to the enemy.446
In addition, protection for civilian medical convoys may cease only after due warning has
been given, naming, in all appropriate cases, a reasonable time limit, and after such warning has
remained unheeded.447
7.19 CIVILIAN MEDICAL AIRCRAFT
Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm,
and maternity cases, or for the transport of medical personnel and equipment, shall not be
attacked, but shall be respected while flying at heights, times, and on routes specifically agreed
upon between all the parties to the conflict concerned.448
7.19.1 Civilian Medical Aircraft Not Flying at Heights and Times and on Routes
Specifically Agreed Upon by Belligerents Concerned. As with medical aircraft for military
personnel, the use of protected medical aircraft for civilians generally depends on an agreement
between the belligerents.449
However, as with medical aircraft for military personnel, known civilian medical aircraft,
when performing their humanitarian functions, must be respected and protected, provided they
identify themselves as such and comply with the directions of the enemy State.450
occasionally and temporarily, provided, of course, that while so employed it is not used for any other purpose. A
medical convoy composed of horse drawn vehicles normally used for transporting agricultural produce and
occasionally used in the service of the wounded, must, therefore, be protected in the same way as a convoy of
specially designed ambulances.”).
444 Compare § 7.17.1 (Loss of Protection for Civilian Hospitals Used to Commit Acts Harmful to the Enemy).
445 GC COMMENTARY 171 (“As in the case of civilian hospitals and their staff, the protection of medical transport
depends on strict abstention from any direct or indirect participation in a hostile act.”).
446 Compare § 7.17.1.1 (Acts Harmful to the Enemy).
447 Compare § 7.17.1.2 (Due Warning Before Cessation of Protection).
448 GC art. 22 (“Aircraft exclusively employed for the removal of wounded and sick civilians, the infirm and
maternity cases, or for the transport of medical personnel and equipment, shall not be attacked, but shall be
respected while flying at heights, times and on routes specifically agreed upon between all the Parties to the conflict
concerned.”).
449 Refer to § 7.14 (Military Medical Aircraft).
450 Refer to § 7.14.1 (Medical Aircraft Not Flying at Heights and Times and on Routes Specifically Agreed Upon by
Belligerents Concerned).
482
7.19.2 Marking of Civilian Medical Aircraft With the Distinctive Emblem. The aircraft
may be marked with the distinctive emblem provided for in Article 38 of the GWS.451
7.19.3 Prohibition of Flight Over Enemy Territory. Unless otherwise agreed, flights over
enemy or enemy-occupied territory are prohibited.452
7.19.4
Summons to Land. Such aircraft shall obey every summons to land.453
If the
aircraft refuses to obey, it does so at its own risk.454
In the event of a landing thus imposed, the aircraft with its occupants may continue its
flight after examination, if any.455 However, if examination reveals that an act “harmful to the
enemy” has been committed, e.g., if the aircraft is carrying munitions or has been used for
military observation, it loses the benefit of the GC; the aircraft may be seized and the crew and
passengers detained.456
7.20 AP I PROVISIONS ON THE WOUNDED, SICK, AND SHIPWRECKED
Part II of AP I has a number of provisions regarding the wounded, sick, and shipwrecked.
These provisions have generally not been discussed in this Chapter because the United States is
not a Party to AP I. These provisions, however, are summarized in this section to familiarize
service members with them in case U.S. forces are engaged in multinational operations with, or
are engaged in armed conflict against, States that are Parties to AP I.
7.20.1 AP I Provisions on General Protection of the Wounded, Sick, and Shipwrecked
Persons. Section I of Part II of AP I seeks to elaborate upon and change the protections afforded
the wounded, sick, and shipwrecked. For example, AP I provides protection for certain civilian
451 GC art. 22 (“They may be marked with the distinctive emblem provided for in Article 38 of the Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August
12, 1949.”).
452 GC art. 22 (“Unless agreed otherwise, flights over enemy or enemy-occupied territory are prohibited.”).
453 GC art. 22 (“Such aircraft shall obey every summons to land.”). See also GC COMMENTARY 176 (“The summons
to land provides the adverse party with a safeguard; it is the one real means of defence against abuse. This
extremely important provision has also been taken from the First Geneva Convention of 1949; it states explicitly that
medical aircraft must obey every summons to land. It applies in the first place to aircraft flying over enemy or
enemy-occupied territory whether or not they are authorized to do so. It also applies to aircraft which are over their
own territory but close to the enemy lines.”).
454 GC COMMENTARY 176 (“If the aircraft refuses to obey, it does so at its own risk and it is lawful to open fire on it.
If the machine is already out of range, the summons obviously becomes a mere formality. It should not be forgotten
however that if the plane refuses to obey the summons and is pursued it loses the protection of the Convention,
having failed to comply with its own obligations.”).
455 GC art. 22 (“In the event of a landing thus imposed, the aircraft with its occupants may continue its flight after
examination, if any.”).
456 GC COMMENTARY 177 (“If—and it is to be hoped that such cases will be the exception—if examination reveals
that an act ‘harmful to the enemy’, in the sense of Article 19, has been committed, i.e. if the plane is carrying
munitions or has been used for military observation, it loses the benefit of the Convention; the enemy may seize it
and intern the crew and passengers or, should occasion arise, treat them in accordance with Article 5 of the
Convention.”).
483
medical units.457 The obligations in AP I also cover both combatants and civilians. For the
purpose of applying AP I, Article 8 of AP I defines “wounded” and “sick” to include persons
“whether military or civilian” and “maternity cases, new-born babies and other persons who may
be in need of immediate medical assistance or care, such as the infirm or expectant mothers, and
who refrain from any act of hostility.”458 On the other hand, in the 1949 Geneva Conventions,
the protections for civilians who are wounded and sick are addressed in the GC, and the
protections for combatants who are wounded and sick are addressed in the GWS, GWS-Sea, and
GPW.459
7.20.2 AP I Provisions on Medical Transportation. Section II of AP I has a number of
articles that are intended to expand upon the protection afforded to medical transports. For
example, under AP I, the respect and protection of medical aircraft of a party to the conflict in
and over land areas physically controlled by friendly forces or in and over sea areas not
physically controlled by an adverse party are not dependent on any agreement with an adverse
party.460 Similarly, the protection of small craft described in Article 27 of the GWS-Sea is
afforded, even if the notification envisaged by that Article has not been made.461
7.20.3 AP I Provisions on Missing and Dead Persons. Section III of Part II of AP I has
three articles that are intended to help families know the fate of their relatives.462 For example,
as soon as circumstances and the relations between adverse parties permit, the States that are
Parties to AP I in whose territories graves may be shall conclude agreements: (1) to facilitate
access to gravesites by relatives of the deceased and by representatives of official Graves
Registration Services and to regulate the practical arrangements for such access; (2) to protect
and maintain such gravesites permanently; and (3) to facilitate the return of the remains of the
457 AP I art. 12(2) (“2. Paragraph 1 shall apply to civilian medical units, provided that they: a) belong to one of the
Parties to the conflict; b) are recognized and authorized by the competent authority of one of the Parties to the
conflict; or c) are authorized in conformity with Article 9, paragraph 2, of this Protocol or Article 27 of the First
Convention.”).
458 AP I art. 8(a) (“‘Wounded’ and ‘sick’ mean persons, whether military or civilian, who, because of trauma,
disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain
from any act of hostility. These terms also cover maternity cases, new-born babies and other persons who may be in
need of immediate medical assistance or care, such as the infirm or expectant mothers, and who refrain from any act
of hostility;”).
459 Refer to § 7.3.2 (Persons Entitled to Protection as Wounded, Sick, or Shipwrecked Under the GWS and GWS-
Sea); § 7.16 (Protection of Civilians Who Are Wounded, Sick, Infirm, or Expectant Mothers).
460 AP I art. 25 (“In and over land areas physically controlled by friendly forces, or in and over sea areas not
physically controlled by an adverse Party, the respect and protection of medical aircraft of a Party to the conflict is
not dependent on any agreement with an adverse Party. For greater safety, however, a Party to the conflict operating
its medical aircraft in these areas may notify the adverse Party, as provided in Article 29, in particular when such
aircraft are making flights bringing them within range of surface-to-air weapons systems of the adverse Party.”).
461 AP I art. 22(3) (“Small craft described in Article 27 of the Second Convention shall be protected even if the
notification envisaged by that Article has not been made. The Parties to the conflict are, nevertheless, invited to
inform each other of any details of such craft which will facilitate their identification and recognition.”).
462 AP I art. 32 (“In the implementation of this Section, the activities of the High Contracting Parties, of the Parties
to the conflict and of the international humanitarian organizations mentioned in the Conventions and in this Protocol
shall be prompted mainly by the right of families to know the fate of their relatives.”).
484
deceased and of personal effects to the home country upon its request or, unless that country
objects, upon the request of the next of kin.463
463 Consider AP I art. 34(2) (“As soon as circumstances and the relations between the adverse Parties permit, the
High Contracting Parties in whose territories graves and, as the case may be, other locations of the remains of
persons who have died as a result of hostilities or during occupation or in detention are situated, shall conclude
agreements in order: (a) to facilitate access to the gravesites by relatives of the deceased and by representatives of
official graves registration services and to regulate the practical arrangements for such access; (b) to protect and
maintain such gravesites permanently; (c) to facilitate the return of the remains of the deceased and of personal
effects to the home country upon its request or, unless that country objects, upon the request of the next of kin.”).
485
VIII - Detention: Overview and Baseline Rules
Chapter Contents
8.1 Introduction
8.2 Humane Treatment of Detainees
8.3 Security Measures
8.4 Interrogation
8.5 Adequate Food, Drinking Water, and Clothing
8.6 General Conditions of Detention Facilities
8.7 Segregation of Detainees
8.8 Medical Attention
8.9 Administration and Discipline in Detention Facilities
8.10 Contacts With the Outside World
8.11 Religious Exercise
8.12 Intellectual, Physical, and Recreational Activities
8.13 Adequate Working Conditions
8.14 Procedures for Detention
8.15 National Accountability for Detention
8.16 Criminal Procedure and Punishment
8.1 INTRODUCTION
8.1.1 Overview of Detention Rules in This Manual and the Scope of Chapter VIII. The
internment of POWs is addressed in Chapter IX. The internment of protected persons in the
home territory of a belligerent or in occupied territory is addressed in Chapter X.
Detention may occur outside these contexts. For example, the detention of civilians may
occur outside a belligerent’s home territory but before the establishment of occupation.
Similarly, detention may occur in non-international armed conflict or other military operations,
such as non-combatant evacuation operations, peace operations, or humanitarian assistance
operations. There are no “law-free zones” in which detainees are outside the protection of the
law. Where no more specific rules apply, the rules in this Chapter apply as baseline rules
addressing the detention of persons during military operations. For example, the following
situations are covered by the rules in this Chapter:
• detention of persons who have participated in hostilities or who belong to armed groups,
but who are not entitled to POW status or protected person status in international armed
conflict;
• detention of persons held for reasons related to a non-international armed conflict; and
• any other detentions.
8.1.2 DoD Policies and Regulations Regarding the Treatment of Detainees. DoD policies
and regulations regarding the treatment of detainees provide authoritative guidance for DoD
486
personnel and fill an important role in implementing the requirements of Common Article 3 of
the 1949 Geneva Conventions and applicable customary international law.1 Practitioners are
advised to consult all applicable policies and regulations, as these, in many cases, exceed the
requirements of international law, U.S. statutes, and Executive Orders.
The practice of the U.S. armed forces has been to go beyond a minimalist approach of
complying with the baseline rules of Common Article 3 of the 1949 Geneva Conventions and
instead to endeavor to enhance conditions so as to ensure that treatment of detainees exceeds the
requirements of humane treatment standards under international law, consistent with security
concerns.2
8.1.3 Ad Hoc Legal Instruments or Frameworks That May Be Applicable to Detention
Outside the Context of POW or Civilian Internment. The detention of persons under the law of
war, outside the context of the regimes specified in Chapters IX (POWs under the GPW) and X
(protected persons under the GC who are interned in a belligerent’s home territory or occupied
territory) may be addressed in ad hoc legal instruments or frameworks.
Such legal instruments may include, for example, an international agreement between the
State conducting detention operations and the State on whose territory the operations are being
conducted.3 As another example, a U.N. Security Council Resolution may provide a basis for
detention operations.4
1 Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).
2 For example, Admiral Patrick Walsh, et al., Department of Defense, Review of Department Compliance with
President’s Executive Order on Detainee Conditions of Confinement, 4 (2009) (“While we conclude that conditions
at Guantánamo are in conformity with Common Article 3, from our review, it was apparent that the chain of
command responsible for the detention mission at Guantánamo consistently seeks to go beyond a minimalist
approach to compliance with Common Article 3, and endeavors to enhance conditions in a manner as humane as
possible consistent with security concerns.”).
3 For example, Agreement Between the United States and the Republic of Iraq on the Withdrawal of United States
Forces from Iraq and the Organization of their Activities during their Temporary Presence in Iraq, Nov. 17, 2008,
art. 22(1) (“No detention or arrest may be carried out by the United States Forces (except with respect to detention
or arrest of members of the United States Forces and of the civilian component) except through an Iraqi decision
issued in accordance with Iraqi law and pursuant to Article 4.”).
4 For example, U.N. SECURITY COUNCIL RESOLUTION 1546 (2004), U.N. Doc. S/RES/1546(2004), ¶10 (Jun. 8,
2004) (“Decides that the multinational force shall have the authority to take all necessary measures to contribute to
the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing,
inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including
by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi
people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the
timetable and programme for the political process and benefit from reconstruction and rehabilitation activities;”).
See also Colin L. Powell, Secretary of State, Letter to the Lauro L. Baja, Jr., President of the Security Council, Jun.
5, 2004, annexed to U.N. SECURITY COUNCIL RESOLUTION 1546 (2004), U.N. Doc. S/RES/1546(2004), 10, 11 (Jun.
8, 2004) (“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to
contribute to the maintenance of security and to ensure force protection. These include activities necessary to
counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This
will include combat operations against members of these groups, internment where this is necessary for imperative
reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security.”).
487
8.1.3.1 Detention Authority. The legal authority to detain outside the context of
the internment of POWs or protected persons may be addressed in ad hoc international
instruments. Even if not specifically addressed in an international legal instrument, the legal
authority to detain may sometimes be understood as an incident of general authorities conferred
by that instrument, such as a U.N. Security Council Resolution authorizing military operations or
an agreement authorizing one State to conduct military operations on the territory of another
State.5
In many cases, the legal authority to detain would be understood as an exercise of the
Detaining Power’s sovereign rights under international law rather than, or in addition to,
authorities arising from an international legal instrument.6
The authority to detain is often understood as an incident to more general authorities
because detention is fundamental to waging war or conducting other military operations (e.g.,
noncombatant evacuation operations, peacekeeping operations).7 Detention operations may be
militarily necessary to achieve the object of those operations.8 In addition, the right to use force
in self-defense during such operations includes at least a limited right to detain for security
reasons.9 In fact, it may be inhumane to conduct military operations without some provision for
those who are detained incident to the operations (e.g., being prepared to conduct detention
5 For example, Brigadier General Bantz J. Craddock, Task Force Falcon, Policy Letter #TFF-04, Detention
Processing ¶1 (Aug. 3, 1999), reprinted in CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE
GENERAL’S LEGAL CENTER & SCHOOL, U.S. ARMY, LAW AND MILITARY OPERATIONS IN KOSOVO, 1999-2001:
LESSONS LEARNED FOR JUDGE ADVOCATES 281 (2001) (“Pursuant to United Nations Security Council Resolution
1244, KFOR [Kosovo Force] has the responsibility to ensure public safety and order until the international civil
presence can take responsibility for this task. Sergio Vieira de Mello reiterated that, ‘In performing this task, KFOR
has the right to apprehend and detain persons who are suspected of having committed offenses against public safety
and order, including the commission of such serious offenses as murder, rape, kidnapping or arson, or war crimes
(enclosure).’ This memorandum outlines the procedures to be employed in the Multi-National Brigade-East Area of
Responsibility (MNB-E AOR) for the detention and release of civilians.”).
6 Refer to § 1.3.3.1 (Law of War as Prohibitive Law).
7 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 518 (2004) (plurality) (“The AUMF authorizes the President to use
‘all necessary and appropriate force’ against ‘nations, organizations, or persons’ associated with the September 11,
2001, terrorist attacks.
115 Stat. 224. There can be no doubt that individuals who fought against the United States
in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network
responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that
detention of individuals falling into the limited category we are considering, for the duration of the particular
conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the
‘necessary and appropriate force’ Congress has authorized the President to use.”); Moyer v. Peabody, 212 U.S. 78,
84 (1909) (Holmes, J.) (“The constitution [of the State of Colorado] is supplemented by an act providing that ‘when
an invasion of or insurrection in the state is made or threatened, the Governor shall order the national guard to repel
or suppress the same.’ Laws of 1897, c. 63, Art. 7, § 2, p. 204. That means that he shall make the ordinary use of the
soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of
seizing the bodies of those whom he considers to stand in the way of restoring peace.”).
8 See, e.g., Copenhagen Process: Principles and Guidelines ¶3 (“Participants recognised that detention is a
necessary, lawful and legitimate means of achieving the objectives of international military operations;”).
9 For example, Detainee Review Procedures at Bagram Theater Internment Facility (BTIF), Afghanistan, enclosure
to Phillip Carter, Deputy Assistant Secretary of Defense for Detainee Policy, Letter to Chairman Carl Levin, Jul. 14,
2009 (“(U) U.S. Forces operating under Operation Enduring Freedom (OEF) authority are authorized to detain
persons temporarily, consistent with the laws and customs of war (e.g., in self-defense or for force protection).”).
488
operations, and provision for transfer of captured persons to coalition partners who are
conducting humane detention operations).10
8.1.3.2 Specific Procedures or Restrictions Applicable to Detention Outside the
Context of POW or Protected Person Internment. Ad hoc legal instruments may provide
additional procedures or restrictions applicable to detention outside the context of the internment
of POWs or protected persons. For example, special agreements between opposing non-State
parties to a conflict could be used to bring into force provisions of the GPW or GC for the
purposes of that conflict.11 As another example, agreements among coalition partners regarding
the transfer of detainees between one another might prescribe additional requirements.
8.1.4 Sources of Baseline Standards for the Treatment of Detainees. The baseline
standards for the treatment of detainees by U.S. armed forces addressed in this Chapter are
derived from Common Article 3 of the 1949 Geneva Conventions, applicable customary
international law, and applicable U.S. law and national policy. The principle of humanity
animates the rules discussed in this Chapter.12 In addition, analogous provisions of the GPW and
the GC may also be helpful in understanding the baseline rules for detention.
8.1.4.1 Common Article 3 of the 1949 Geneva Conventions. Although Common
Article 3 of the 1949 Geneva Conventions provides that it applies “[i]n the case of armed conflict
not of an international character occurring in the territory of one of the High Contracting
Parties,” Common Article 3 reflects minimum standards for humane treatment that apply to all
military operations.13 Thus, during both international and non-international armed conflict,
Common Article 3 reflects a minimum yardstick of humane treatment protections for “all
persons taking no active part in hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds, detention, or any other
cause.”14
DoD policy has explicitly incorporated the standards in Common Article 3 as minimum
standards.15
10 Refer to § 5.5.7 (Prohibition Against Declaring That No Quarter Be Given).
11 Refer to § 17.3 (Special Agreements Between Parties to the Conflict).
12 Refer to § 2.3 (Humanity).
13 Refer to § 3.1.1.2 (Applying Law of War Standards as Reflecting Minimum Legal Standards).
14 GWS art. 3; GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same). See Hamdan v. Rumsfeld, 548 U.S.
557, 630-31 (2006) (explaining that Common Article 3 provides “some minimal protection” in all armed conflicts);
Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), Merits, Judgment, 1986
I.C.J. 14, 114 (¶218) (explaining that the rules in Common Article 3 of the 1949 Geneva Conventions “constitute a
minimum yardstick,” in all armed conflicts and reflect “elementary considerations of humanity”) (quoting Corfu
Channel Case (United Kingdom v. Albania), Merits, Judgment, 1949 I.C.J. 4, 22).
15 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3a (Aug. 19, 2014) (“Until a detainee’s
release, repatriation, or transfer from DoD custody or control, all persons subject to this directive will, without
regard to a detainee’s legal status, at a minimum apply: (1) The standards established in Common Article 3 to
References (b) through (e).”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶¶4.1-4.2
(Sept. 5, 2006) (requiring that all detainees “be treated humanely” and “shall receive, at a minimum, the standard of
treatment discussed in Common Article 3 of the Geneva Conventions”).
489
8.1.4.2 Article 75 of AP I and Relevant AP II Provisions. Article 75 of AP I
reflects fundamental guarantees for the treatment of persons detained during international armed
conflict. Although not a Party to AP I, the United States has stated that the U.S. Government
will choose out of a sense of legal obligation to treat the principles set forth in Article 75 as
applicable to any individual it detains in an international armed conflict, and expects all other
nations to adhere to these principles as well.16 This statement was intended to contribute to the
crystallization of the principles contained in Article 75 as rules of customary international law
applicable in international armed conflict.17
AP II also contains provisions that expand on Common Article 3’s protections for
persons held for reasons related to non-international armed conflict. Although the United States
has not ratified AP II, President Reagan submitted AP II to the Senate for its advice and consent
to ratification, and the Executive Branch has urged the Senate to act as soon as practicable on AP
II, noting further that reviews have determined that relevant U.S. military practices are consistent
with AP II.18
8.1.4.3 U.S. Domestic Law and National Policy. In addition to international law,
the requirements in this Chapter are also based on the requirements of applicable U.S. statutes,
such as the Detainee Treatment Act of 2005, or national policy, such as the requirements stated
in applicable Executive Orders.
8.1.4.4 Analogous GPW and GC Provisions. In some cases, analogous provisions
of the GPW and the GC may also be helpful in understanding the baseline rules for detention.
For example, it may be appropriate to apply the principles of the GPW and GC, even when the
relevant provisions do not apply as a matter of law.19
16 See The White House, Office of the Press Secretary, Fact Sheet: New Actions on Guantánamo and Detainee
Policy, Mar. 7, 2011 (“Article 75 of Additional Protocol I, which sets forth fundamental guarantees for persons in
the hands of opposing forces in an international armed conflict, is similarly important to the international legal
framework. Although the Administration continues to have significant concerns with Additional Protocol I, Article
75 is a provision of the treaty that is consistent with our current policies and practice and is one that the United
States has historically supported. Our adherence to these principles is also an important safeguard against the
mistreatment of captured U.S. military personnel. The U.S. Government will therefore choose out of a sense of
legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an
international armed conflict, and expects all other nations to adhere to these principles as well.”).
17 Harold Koh, Legal Adviser, Department of State, Responses to Questions Submitted by Senator Richard G. Lugar,
Libya and War Powers: Hearing Before the Committee on Foreign Relations, U.S. Senate, 112th Congress, First
Session, 53, 57 (Jun. 28, 2011) (“As a matter of international law, the administration’s statement is likely to be
received as a statement of the U.S. Government’s opinio juris as well as a reaffirmation of U.S. practice in this area.
The statement is therefore also likely to be received as a significant contribution to the crystallization of the
principles contained in Article 75 as rules of customary international law applicable in international armed conflict.
… The U.S. statement, coupled with a sufficient density of State practice and opinio juris, would contribute to
creation of the principles reflected in Article 75 as rules of customary international law, which all States would be
obligated to apply in international armed conflict.”).
18 Refer to § 19.20.2.1 (The United States and AP II).
19 For example, George W. Bush, Memorandum: Humane Treatment of Taliban and al Qaeda Detainees ¶5 (Feb. 7,
2002) (“I hereby reaffirm the order previously issued by the Secretary of Defense to the United States Armed Forces
requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity,
in a manner consistent with the principles of Geneva.”).
490
In addition, as a general matter, analogous provisions of the GPW and GC may be helpful
for understanding the requirements in international law for conducting detention operations
because the baseline standards for such operations during armed conflict are not more restrictive
upon States than the requirements with respect to POWs and civilian internees under the GPW
and GC, respectively.20
In this Chapter, cross-references to sections that address analogous GPW and GC
requirements are used for the purposes described above.
8.1.4.5 Copenhagen Process on the Handling of Detainees in International
Military Operations. From 2007 to 2012, U.S. representatives participated, along with those of
23 other States and from several international organizations, in a process led by the Government
of Denmark to formulate principles and guidelines on the handling of detainees in international
military operations.21 Participants in the Copenhagen Process sought to develop principles to
guide the implementation of the existing obligations with respect to detention in international
military operations and to promote best practices.22 The Copenhagen Process Principles and
Guidelines is not a text of a legally binding nature.23
20 For example, In re Guantanamo Bay Litigation, Respondents’ Memorandum Regarding the Government’s
Detention Authority Relative to Detainees Held at Guantanamo Bay, Misc. No. 08-442, 1 (D.D.C., Mar. 13, 2009)
(“The laws of war have evolved primarily in the context of international armed conflicts between the armed forces
of nation states. This body of law, however, is less well-codified with respect to our current, novel type of armed
conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing
international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has
authorized for the current armed conflict. … The President also has the authority under the AUMF [Authorization
for the Use of Military Force] to detain in this armed conflict those persons whose relationship to al-Qaida or the
Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them
detainable.”).
21 Copenhagen Process: Principles and Guidelines ¶I (“The Copenhagen Process on the Handling of Detainees in
International Military Operations (The Copenhagen Process) was launched on 11 October 2007 and was concluded
in Copenhagen on 19 October 2012. Representatives from Argentina, Australia, Belgium, Canada, China, Denmark,
Finland, France, Germany, India, Malaysia, New Zealand, Nigeria, Norway, Pakistan, Russia, South Africa,
Sweden, Tanzania, the Netherlands, Turkey, Uganda, the United Kingdom, and the United States of America
participated in The Copenhagen Process meetings. Representatives of the African Union (AU), the European Union
(EU), the North Atlantic Treaty Organisation (NATO), the United Nations (UN), and the International Committee of
the Red Cross (ICRC) also attended The Copenhagen Process meetings as observers. Representatives of civil
society were also consulted at various stages of The Copenhagen Process;”).
22 Copenhagen Process: Principles and Guidelines ¶II (“During The Copenhagen Process meetings participants -
while not seeking to create new legal obligations or authorizations under international law - confirmed the desire to
develop principles to guide the implementation of the existing obligations with respect to detention in international
military operations; … Participants were also inspired by the good practices that States and organisations have
developed in international military operations;”).
23 Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶16.2 (“This savings clause
also recognises that The Copenhagen Process Principles and Guidelines is not a text of a legally binding nature and
thus, does not create new obligations or commitments. Furthermore, The Copenhagen Process Principles and
Guidelines cannot constitute a legal basis for detention. Although some language, e.g., Principle 2, may reflect legal
obligations in customary and treaty law, The Copenhagen Process Principles and Guidelines are intended to reflect
generally accepted standards. In such instances, the applicability and binding nature of those obligations is
established by treaty law or customary international law, as applicable, and not by The Copenhagen Process
Principles and Guidelines. Since The Copenhagen Process Principles and Guidelines were not written as a
491
The Copenhagen Process Principles and Guidelines are intended to apply to international
military operations in the context of non-international armed conflicts and peace operations; they
are not intended to address international armed conflicts.24
8.2 HUMANE TREATMENT OF DETAINEES
Detainees shall in all circumstances be treated humanely and protected against any cruel,
inhuman, or degrading treatment. This requirement has been reflected in international law,25
domestic law,26 national policy,27 and DoD policies.28 Violations of the requirement to treat
detainees humanely may be violations of criminal law, although it is not a purpose of this section
to address liability under criminal law.
8.2.1 Protection Against Violence, Torture, and Cruel Treatment. Detainees must be
protected against violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment, torture, and any form of corporal punishment.29
restatement of customary international law, the mere inclusion of a practice in The Copenhagen Process Principles
and Guidelines should not be taken as evidence that States regard the practice as required out of a sense of legal
obligation.”).
24 Copenhagen Process: Principles and Guidelines ¶IX (“The Copenhagen Process Principles and Guidelines are
intended to apply to international military operations in the context of non-international armed conflicts and peace
operations; they are not intended to address international armed conflicts;”).
25 GWS art. 3 (requiring that “[p]ersons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,
shall in all circumstances be treated humanely”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).
26 42 U.S.C. § 2000dd (“No individual in the custody or under the physical control of the United States Government,
regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or
punishment.”).
27 See, e.g., Executive Order 13491, Ensuring Lawful Interrogations, 74 FEDERAL REGISTER 4893, 4894 (Jan. 22,
2009) (“Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340-2340A, section 1003 of the
Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other
laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in
all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of
all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and
degrading treatment), whenever such individuals are in the custody or under the effective control of an officer,
employee, or other agent of the United States Government or detained within a facility owned, operated, or
controlled by a department or agency of the United States.”); George W. Bush, Memorandum: Humane Treatment
of Taliban and al Qaeda Detainees ¶5 (Feb. 7, 2002) (“I hereby reaffirm the order previously issued by the
Secretary of Defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the
extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”).
28 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b (Aug. 19, 2014) (“All detainees will be
treated humanely and with respect for their dignity, in accordance with applicable U.S. law and policy and the law
of war. The humane treatment requirements in this section apply during all military operations, however
characterized.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶4.1 (Sept. 5, 2006)
(“All detainees shall be treated humanely and in accordance with U.S. law, the law of war, and applicable U.S.
policy.”); 1997 MULTI-SERVICE DETENTION REGULATION § 1-5.b (“All prisoners will receive humane treatment
without regard to race, nationality, religion, political opinion, sex, or other criteria.”).
29 See GWS art. 3 (prohibiting with respect to persons taking no active part in the hostilities “violence to life and
person, in particular murder of all kinds, mutilation, cruel treatment and torture”); GWS-SEA art. 3 (same); GPW art.
492
8.2.2 Protection Against Humiliating or Degrading Treatment. Detainees must be
protected against outrages upon personal dignity, in particular, humiliating and degrading
treatment.30
8.2.2.1 Protection Against Rape, Enforced Prostitution, and Other Indecent
Assault. Detainees must be protected against rape, forced prostitution, and other indecent
assault.31 Indecent assault is generally referred to today as sexual assault.32
8.2.2.2 Protection Against Public Curiosity. Detainees must be protected against
insults and public curiosity.33 For example, displaying detainees publicly with the purpose of
exposing them to ridicule and humiliation is prohibited.34
8.2.2.3 DoD Practice of Generally Prohibiting Taking Photographs Without
Authorization. In order to protect detainees against public curiosity, among other reasons, DoD
policy has generally prohibited the taking of photographs of detainees except for authorized
purposes.35
3 (same); GC art. 3 (same). Consider AP I art. 75(2)(a) (prohibiting with respect to persons who are in the power of
a Party to the conflict “[v]iolence to the life, health, or physical or mental well-being of persons, in particular:
(i)
Murder; (ii) Torture of all kinds, whether physical or mental; (iii) Corporal punishment; and (iv) [Mutilation];”)
(brackets in original); AP II art. 4(2) (prohibiting with respect to persons who do not take a direct part or who have
ceased to take part in hostilities “[v]iolence to the life, health and physical or mental well-being of persons, in
particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;”).
30 See GWS art. 3 (prohibiting with respect to persons taking no active part in the hostilities “outrages upon personal
dignity, in particular, humiliating and degrading treatment;”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3
(same).
31 Consider AP I art. 75(2)(b) (prohibiting with respect to persons who are in the power of a Party to the conflict
“[o]utrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any
form of indecent assault”); AP II art. 4(2)(e) (prohibiting “[o]utrages upon personal dignity, in particular humiliating
and degrading treatment, rape, enforced prostitution and any form of indecent assault;”). Compare § 9.5.1 (Respect
for Their Persons and Honor); § 10.5.1.2 (Protection for Women Against Rape or Other Indecent Assault).
32 BLACK’S LAW DICTIONARY (9th ed., 2009) (“indecent assault. See sexual assault (2) under assault.”).
33 DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b(2) (Aug. 19, 2014) (“All detainees will be respected as
human beings … . They will be protected against … public curiosity, … .”); DOD DIRECTIVE 2310.01E, The
Department of Defense Detainee Program, ¶E4.1.1.3 (Sept. 5, 2006) (“All detainees will be respected as human
beings. They will be protected against … public curiosity … .”); Chairman’s Commentary to the Copenhagen
Process: Principles and Guidelines, ¶2.3 (“Furthermore, humane treatment implies that detainees will be protected
from insults and public curiosity.”).
34 Compare § 9.5.3 (Protection Against Insults and Public Curiosity).
35 For example, 1997 MULTI-SERVICE DETENTION REGULATION § 1-5.d (“Photographing, filming, and video taping
of individual EPW, CI and RP for other than internal Internment Facility administration or
intelligence/counterintelligence purposes is strictly prohibited. No group, wide area or aerial photographs of EPW,
CI and RP or facilities will be taken unless approved by the senior Military Police officer in the Internment Facility
commander’s chain of command.”).
493
8.2.3 Prohibition Against Biological or Medical Experiments. Medical or biological
experiments on detainees are prohibited.36
8.2.4 Threats to Commit Inhumane Treatment. Threats to commit the unlawful acts
described above (i.e., violence against detainees, or humiliating or degrading treatment, or
biological or medical experiments) are also prohibited.37 This prohibition may be understood to
arise separately (i.e., as a distinct prohibition against certain threats), or it may be understood to
result when such threats themselves constitute a form of torture or other abuse.38
8.2.5 Duty to Protect Detainees. Detainees should be protected not only against unlawful
acts by agents of the Detaining Power, but also against unlawful acts from others, including other
detainees or the civilian population.39
8.2.6 No Adverse Distinction. Detainees shall be treated humanely without any adverse
distinction founded on race, color, religion or faith, sex, birth or wealth, national or social origin,
political or other opinion, or any other similar criteria.40
36 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶2.1 (“[The principle
requiring humane treatment of detainees] also incorporates the prohibition against torture and other forms of cruel,
inhuman or degrading treatment or punishment, the prohibition against corporal and collective punishment and
medical experiments; and includes threats to commit the foregoing acts.”). Compare § 9.5.2.4 (No Physical
Mutilation or Medical, Scientific, or Biological Experiments); § 10.5.1.1 (Measures of Physical Suffering,
Extermination, or Other Brutality).
37 Consider AP I art. 75(2)(e) (prohibiting with respect to persons who are in the power of a Party to the conflict
“[t]hreats to commit any of the foregoing acts,” which include “(a) Violence to the life, health, or physical or mental
well-being of persons, in particular: (i) Murder; (ii) Torture of all kinds, whether physical or mental; (iii) Corporal
punishment; and (iv) [Mutilation]; (b) Outrages upon personal dignity, in particular humiliating and degrading
treatment, enforced prostitution and any form of indecent assault;”); AP II art. 4(2)(h) (prohibiting with respect to
persons who do not take a direct part or who have ceased to take part in hostilities “[t]hreats to commit any of the
foregoing acts,” which include (a) violence to the life, health and physical or mental well-being of persons, in
particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment and (b)
outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and
any form of indecent assault).
38 See, e.g., 18 U.S.C. § 2340 (defining “torture” to include “severe mental pain or suffering” caused by or resulting
from “(A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the
administration or application, or threatened administration or application, of mind-altering substances or other
procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D)
the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the
administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the
senses or personality;”) (emphasis added).
39 Compare § 9.5.2 (Protection Against Acts of Violence or Intimidation).
40 GWS art. 3 (“Persons taking no active part in the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex,
birth or wealth, or any other similar criteria.”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).
Consider AP I art. 75(1) (“In so far as they are affected by a situation referred to in Article 1 of this Protocol,
persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under
the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a
minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex,
language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on
494
Special consideration for more vulnerable categories of detainees is consistent with the
requirement that detainees must be humanely treated without adverse distinction.41
Distinction based on the above criteria may also be made so long as it is not adverse and
it is made to advance legitimate interests, such as maintaining order in the camp.42
8.3 SECURITY MEASURES
8.3.1 Searches. Although detainees must always be treated humanely, detainees and their
property may be searched and secured, when necessary for security reasons and intelligence
purposes.43
The dignity and honor of the detainee being searched should be protected to the greatest
degree possible under the circumstances.44 The person conducting the search should avoid doing
or saying anything likely to be regarded as indecent. In some circumstances, it may be
appropriate for a witness to observe the search so as to protect both the person being searched
from abuse and the person conducting the search from unfounded accusations of abuse.
8.3.1.1 Search of Female Detainees. It is appropriate for female detainees to be
searched by female personnel. This practice helps reduce the risk of accusations of indecent
behavior.
8.3.2 Search of Detainee Property. Items in the possession of detainees may be removed
and searched for security and intelligence purposes.45
8.3.3 Securing Detainees With Handcuffs and Other Security Devices. When necessary
for security reasons, detainees may be secured temporarily with handcuffs, flex cuffs, blindfolds,
or other security devices.46
any other similar criteria.”); AP II art. 2(1) (“This Protocol shall be applied without any adverse distinction founded
on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or
other status, or on any other similar criteria (hereinafter referred to as ‘adverse distinction’) to all persons affected by
an armed conflict as defined in Article 1.”).
41 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶2.4 (“The principle
of humane treatment of all persons requires that special consideration be given to the treatment of detainees who
may be vulnerable in this context, such as women, children, the aged and those with disabilities. Such special
consideration is consistent with the requirement that detainees should be humanely treated without adverse
distinction.”).
42 Compare § 7.5.1 (Humane Treatment of the Wounded, Sick, and Shipwrecked Without Adverse Distinction);
§ 9.5.5 (No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief); § 10.5.5 (No Adverse
Distinction Based on Race, Religion, or Political Opinion).
43 Compare § 9.6 (Security Measures With Respect to POWs).
44 Refer to § 10.5 (Humane Treatment and Other Basic Protections for Protected Persons).
45 Refer to § 10.18.2 (Articles of Personal or Sentimental Value).
46 See also Copenhagen Process: Principles and Guidelines, ¶2.2 (“Sensory deprivation of persons who are
detained may in some circumstances amount to ill-treatment if used as a form of punishment or to inflict suffering.
However, sensory deprivation may not in itself amount to ill-treatment as such if the purpose is to ensure the safety
495
8.3.4 Use of Force to Maintain Order and to Prevent Escape. Physical force is not to be
used against a detained person except in circumstances where such force is necessary and
proportionate.47
As with POWs, the use of weapons against detainees, especially against those who are
escaping or attempting to escape, shall constitute an extreme measure, which shall always be
preceded by warnings appropriate to the circumstances.48 For example, detainees should not be
fired upon if they are apprehended within the camp limits while making preparations to escape,
and there is no risk of escape or harm to anyone.
8.3.4.1 Use of Non-Lethal Weapons (Including Riot Control Agents). Non-lethal
weapons may be employed to control rioting detainees or to prevent their escape. In particular,
the use of riot control agents to control rioting detainees is not prohibited.49
If the use of deadly force is warranted and authorized against detainees, there is no legal
requirement to employ non-lethal weapons before resort to deadly force.50
8.4 INTERROGATION
The law of war does not prohibit interrogation of detainees, but interrogation must be
conducted in accordance with the requirements for humane treatment.
8.4.1 Humane Treatment During Interrogation. Interrogation must be carried out in a
manner consistent with the requirements for humane treatment, including the prohibitions against
torture, cruelty, degrading treatment, and acts or threats of violence.51
In addition to the legal prohibitions on torture or other illegal methods of interrogation,
practical considerations have also strongly counseled against such methods.52
of the detainee or of others. For example, using earmuffs during transportation to protect a detainee’s hearing will
not amount to ill-treatment. Similarly, sensory deprivation undertaken as a reasonable security measure such as
blindfolding temporarily a detainee to protect the identity of another detainee or for reasons of operational safety
will not amount to ill-treatment.”). Compare § 9.6.2 (Securing POWs With Handcuffs and Other Security Devices).
47 See Copenhagen Process: Principles and Guidelines, ¶6 (“Physical force is not to be used against a detained
person except in circumstances where such force is necessary and proportionate.”).
48 Compare § 9.22.6 (Use of Force to Maintain Order and to Prevent Escape).
49 Refer to § 6.16.2 (Prohibition on Use of Riot Control Agents as a Method of Warfare).
50 Refer to § 6.5.10.5 (No Requirement to Use Non-Lethal Weapons Before Using Lethal Weapons Where Deadly
Force Is Warranted).
51 Refer to § 8.2 (Humane Treatment of Detainees).
52 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, Intelligence Interrogation, 1-8 (Sept. 28, 1992)
(“Experience indicates that the use of prohibited techniques is not necessary to gain the cooperation of interrogation
sources. Use of torture and other illegal methods is a poor technique that yields unreliable results, may damage
subsequent collection efforts and can induce the source to say what he thinks the interrogator wants to hear.
Revelation of use of torture by US personnel will bring discredit upon the US and its armed forces while
undermining domestic and international support for the war effort. It also may place US and allied personnel in
enemy hands at a greater risk of abuse by their captors.”).
496
8.4.2 Additional U.S. Law and Policy on Interrogation. U.S. law and policy impose
additional requirements on the interrogation of detainees.
8.4.2.1 Only Treatment or Techniques of Interrogation Authorized by and Listed
in the U.S. Army Field Manual on Intelligence Interrogation. No person in the custody or under
the effective control of the Department of Defense or under detention in a Department of
Defense facility shall be subject to any treatment or technique of interrogation not authorized by
and listed in the United States Army Field Manual on Intelligence Interrogation.53 The Army
has published field manuals on interrogation for many years.54
8.5 ADEQUATE FOOD, DRINKING WATER, AND CLOTHING
Detainees shall be provided with adequate food, drinking water, and clothing.
8.5.1 Food for Detainees. Daily food rations for detainees shall be sufficient in quantity,
quality, and variety to keep detainees in a good state of health or in any event no worse than that
afforded the local civilian population.55
8.5.1.1 Accounting for the Customary Diet. DoD practice has been to take
account of the customary diet of the internees.56 For example, the detainee’s cultural and
religious requirements have been considered in determining and ensuring the appropriate diet.
8.5.2
Drinking Water. Sufficient drinking water shall be supplied to detainees.57
8.5.3 Clothing. As needed, detainees shall be supplied with sufficient clothing,
underwear, and footwear that is appropriate for the climate.58
8.6 GENERAL CONDITIONS OF DETENTION FACILITIES
Detainees shall be afforded, to the same extent as the local civilian population, safeguards
as regards health and hygiene and protection against the rigors of the climate and the dangers of
the armed conflict.59
53 10 U.S.C. § 801 note (“No person in the custody or under the effective control of the Department of Defense or
under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation
not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.”).
54 For example, DEPARTMENT OF THE ARMY FIELD MANUAL 2-22.3, Human Intelligence Collector Operations (Sept.
6, 2006); DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, Intelligence Interrogation (Sept. 28, 1992);
DEPARTMENT OF THE ARMY FIELD MANUAL 34-52, Intelligence Interrogation (May 8, 1987).
55 Consider AP II art. 5(1)(b) (“The persons referred to in this paragraph shall, to the same extent as the local
civilian population, be provided with food and drinking water and be afforded safeguards as regards health and
hygiene and protection against the rigours of the climate and the dangers of the armed conflict;”). Compare § 9.13.1
(Food for POWs); § 10.13.1 (Food for Internees).
56 Compare § 9.13.1.1 (Accounting for the Habitual Diet); 10.13.1.1 (Accounting for the Customary Diet).
57 Compare § 9.13.2 (Drinking Water); § 10.13.2 (Drinking Water).
58 Compare § 9.13.4 (Clothing for POWs); § 10.13.4 (Clothing of Internees).
497
8.6.1 Safeguards as Regards Health and Hygiene. The obligation to afford safeguards as
regards health and hygiene would include taking sanitary measures necessary to ensure the
cleanliness and healthfulness of camps and to prevent epidemics. For example, the DoD practice
has been to give detainees medical examinations upon arrival at an internment facility, disinfect
them, and provide them with any necessary inoculations. In addition, quarters should be kept
free from vermin, and detainees suffering from contagious diseases should be placed in
quarantine as needed.60
8.6.2 Protection Against the Rigors of Climate. The obligation to afford protection
against the rigors of climate would include ensuring that detention facilities are adequately
heated, lighted, and protected against dampness.61
8.6.3 Protection From the Dangers of Armed Conflict. Detention facilities shall not be
located close to the combat zone.62
8.6.4 No Prohibition Against Detention Aboard Ships. Provided the above requirements
are met, there is no prohibition against the humane detention of persons on ships.63 The GPW
generally requires that POWs be interned on premises located on land.64
8.7 SEGREGATION OF DETAINEES
Detainees may be segregated into camps or camp compounds according to their
nationality, language, and customs, and the Detaining Power may use other criteria to segregate
detainees for administrative, security, intelligence, medical, or law enforcement purposes.65
8.7.1 Gender and Family Segregation. Except when men and women of a family are
accommodated together, women shall be held in quarters separated from those of men and shall
be under the immediate supervision of women.66
59 Consider AP II art. 5(1)(b) (“The persons referred to in this paragraph shall, to the same extent as the local
civilian population, be provided with food and drinking water and be afforded safeguards as regards health and
hygiene and protection against the rigours of the climate and the dangers of the armed conflict;”).
60 Compare § 9.11.5.1 (Necessary Sanitary Measures).
61 Compare § 10.11.3 (Conditions of Buildings and Quarters).
62 Consider AP II art. 5(2)(c) (“Places of internment and detention shall not be located close to the combat zone.”).
Compare § 9.11.4.1 (Avoidance of the Combat Zone); § 10.11.1.1 (Avoidance of Particularly Dangerous Areas).
63 For example, Charlie Savage, U.S. Tests New Approach to Terrorism Cases on Somali Suspect, THE NEW YORK
TIMES, Jul. 6, 2011 (“In interrogating a Somali man for months aboard a Navy ship before taking him to New York
this week for a civilian trial on terrorism charges, the Obama administration is trying out a new approach for dealing
with foreign terrorism suspects. … The administration notified the International Committee of the Red Cross of his
capture, and a Red Cross representative flew out to the ship and met with him. That visit came about two months
after his capture, during a four-day break between his interrogation for intelligence purposes and separate
questioning for law-enforcement purposes.”).
64 Refer to § 9.11.3.1 (Location on Land).
65 Compare § 9.12 (Segregation of POWs); § 10.10 (Segregation of Internees).
498
8.8 MEDICAL ATTENTION
Wounded and sick detainees shall be cared for.67 They should receive the medical care
and attention required by their condition.68 Medical or biological experiments on detainees are
prohibited.69
8.8.1 Consent. Medical care should, wherever possible, be undertaken with the consent
of the wounded or sick detainee.70 However, medical actions to preserve the health of the
detainee may be justified even where the detainee refuses to provide consent.71 For example, it
is not prohibited to administer vaccinations to detainees in order to preserve their health and to
prevent epidemics. Similarly, it is not prohibited to order detainees to be fed, if they undertake a
hunger strike.72
8.8.2 Blood Donation and Skin Grafting. Detainees may voluntarily consent to give
blood for transfusion or skin for grafting for therapeutic purposes; such procedures should take
66 Consider AP II art. 5(2) (“Except when men and women of a family are accommodated together, women shall be
held in quarters separated from those of men and shall be under the immediate supervision of women;”); AP I art.
75(5) (“Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters
separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases
where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated
as family units.”).
67 GWS art. 3 (“The wounded and sick shall be collected and cared for.”); GWS-SEA art. 3 (same); GPW art. 3
(same); GC art. 3 (same). Compare § 7.5 (Humane Treatment and Care of Enemy Military Wounded, Sick, and
Shipwrecked in the Power of a Party to the Conflict); § 7.16 (Protection of Civilians Who Are Wounded, Sick,
Infirm, or Expectant Mothers).
68 See, e.g., Copenhagen Process: Principles and Guidelines ¶9 (“Wounded and sick detainees are to receive the
medical care and attention required by their condition.”).
69 Refer to § 8.2.3 (Prohibition Against Biological or Medical Experiments).
70 For example, DOD INSTRUCTION 2310.08E, Medical Program Support for Detainee Operations, ¶4.7 (Jun. 6,
2006) (“In general, health care will be provided with the consent of the detainee. To the extent practicable,
standards and procedures for obtaining consent will be consistent with those applicable to consent from other
patients. Standard exceptions for lifesaving emergency medical care provided to a patient incapable of providing
consent or for care necessary to protect public health, such as to prevent the spread of communicable diseases, shall
apply.”).
71 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶9.5 (“Medical assistance
should, wherever possible, be undertaken with the consent of the wounded or sick detainee. However, medical
actions to preserve the health of the detainee may be justified even where the detainee refuses to provide consent.”).
Compare § 7.5.2.4 (Compulsory Medical Treatment).
72 For example, DOD INSTRUCTION 2310.08E, Medical Program Support for Detainee Operations, ¶4.7.1 (Jun. 6,
2006) (“In the case of a hunger strike, attempted suicide, or other attempted serious self-harm, medical treatment or
intervention may be directed without the consent of the detainee to prevent death or serious harm. Such action must
be based on a medical determination that immediate treatment or intervention is necessary to prevent death or
serious harm, and, in addition, must be approved by the commanding officer of the detention facility or other
designated senior officer responsible for detainee operations.”).
499
place under conditions consistent with generally accepted medical standards and controls
designed for the benefit of both the donor and the recipient.73
8.9 ADMINISTRATION AND DISCIPLINE IN DETENTION FACILITIES
Detention facility commanders may establish rules for detainees in the detention facility
and conduct disciplinary proceedings, subject to the requirements for humane treatment.74
8.9.1 Complaints. Detainees should be permitted to submit, without reprisal, complaints
regarding their treatment or conditions of detention to the detaining authorities.75 Investigatory
procedures and a practice of timely and effective investigations of credible complaints of
maltreatment also help ensure that allegations regarding treatment or conditions of detention that
may arise years after the detention can be addressed.76
8.10 CONTACTS WITH THE OUTSIDE WORLD
Subject to security measures, practical considerations, and other military necessities,
detainees should be afforded appropriate contact with the outside world, including: (1) receipt of
individual or collective relief; (2) correspondence; (3) communication with family; and (4) ICRC
access.
8.10.1 Receipt of Individual or Collective Relief. Detainees shall be allowed to receive
individual or collective relief.77
8.10.2 Correspondence. Detainees shall be allowed to send and receive letters and cards,
the number of which may be limited by a competent authority if it deems necessary.78
73 Consider AP I art. 11 (“3. Exceptions to the prohibition in paragraph 2 (c) [against removal of tissue or organs for
transplantation except where these acts are justified] may be made only in the case of donations of blood for
transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement,
and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and
controls designed for the benefit of both the donor and the recipient.”).
74 Compare § 9.27 (Disciplinary Proceedings and Punishment); § 10.28 (Disciplinary Proceedings and Punishment).
75 See Copenhagen Process: Principles and Guidelines ¶14 (“Detainees or their representatives are to be permitted
to submit, without reprisal, oral or written complaints regarding their treatment or conditions of detention. All
complaints are to be reviewed and, if based on credible information, be investigated by the detaining authority.”).
Compare § 9.23.1 (POW Right to Make Requests and Complaints); § 10.21.1 (Internee Right to Present Petitions
and Complaints).
76 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶14.2 (“The
investigation of complaints permits the detaining authority to verify the validity of the complaint and, if verified, to
rectify the situation giving rise to the complaint. Investigatory procedures and a practice of timely and effective
investigations of credible complaints also helps ensure that allegations regarding treatment or conditions of
detention that may arise years after the detention can be addressed. An independent and impartial authority should
carry out such investigations, and the results of an investigation should be reported back to the complainant and the
detaining authority. The investigator may be members of the military and should make recommendations based on
the investigation it has carried out.”).
77 Consider AP II art. 5(1)(c) (“They shall be allowed to receive individual or collective relief;”).
500
8.10.3 Communication With Family. DoD practice has been, where practicable, to grant
detainees the means to communicate with family members (e.g., exchange of letters, phone calls,
and video teleconferences with family, family visits).79
8.10.4 ICRC Access to Detainees. An impartial humanitarian body, such as the ICRC,
may offer its services to the parties to the conflict.80
All departments and agencies of the Federal Government shall provide the International
Committee of the Red Cross with notification of, and timely access to, any individual detained in
any armed conflict in the custody or under the effective control of an officer, employee, or other
agent of the U.S. Government or detained within a facility owned, operated, or controlled by a
department or agency of the U.S. Government, consistent with Department of Defense
regulations and policies.81
8.11 RELIGIOUS EXERCISE
Detainees shall be granted free exercise of religion, consistent with the requirements of
detention.82 Detainees’ religious practices shall be respected.83 They shall be allowed to
78 Consider AP II art. 5(2)(b) (“They shall be allowed to send and receive letters and cards, the number of which
may be limited by competent authority if it deems necessary;”). Compare § 9.20.2 (POW Correspondence Rights
and Quota); § 10.23.2 (Internees’ Correspondence Rights and Quota).
79 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b(1) (Aug. 19, 2014) (“Humane treatment
includes: … (b) … appropriate contacts with the outside world (including, where practicable, exchange of letters,
phone calls, and video teleconferences with immediate family or next of kin, as well as family visits).”). Compare
§ 9.20.2.3 (More Rapid Means of Correspondence in Appropriate Cases); § 10.23.2.3 (More Rapid Means of
Correspondence in Appropriate Cases).
80 GWS art. 3 (“An impartial humanitarian body, such as the International Committee of the Red Cross, may offer
its services to the Parties to the conflict”); GWS-SEA art. 3 (same); GPW art. 3 (same); GC art. 3 (same).
81 Executive Order 13491, Ensuring Lawful Interrogations, §4(b), 74 FEDERAL REGISTER 4893, 4894 (Jan. 22, 2009)
(“All departments and agencies of the Federal Government shall provide the International Committee of the Red
Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or
under the effective control of an officer, employee, or other agent of the United States Government or detained
within a facility owned, operated, or controlled by a department or agency of the United States Government,
consistent with Department of Defense regulations and policies.”).
82 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b (Aug. 19, 2014) (“All detainees will be
treated humanely and with respect for their dignity, in accordance with applicable U.S. law and policy and the law
of war. The humane treatment requirements in this section apply during all military operations, however
characterized.
(1) Humane treatment includes: … (e) Free exercise of religion, consistent with the requirements of
detention.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶E4.1.1 (Sept. 5, 2006)
(“All persons captured, detained, interned, or otherwise in the control of DoD personnel during the course of
military operations will be given humane care and treatment from the moment they fall into the hands of DoD
personnel until release, transfer out of DoD control, or repatriation, including: … E4.1.1.2. Free exercise of religion,
consistent with the requirements of detention;”). Compare § 9.15 (Religious Exercise by POWs); § 10.15 (Religious
Exercise by Internees).
83 Consider AP I art. 75(1) (“Each Party shall respect the person, honour, convictions and religious practices of all
such persons.”).
501
practice their religion and, if requested and appropriate, to receive spiritual assistance from
persons, such as chaplains, performing religious functions.84
DoD practice has been for detainees to be provided religious materials of their faith (e.g.,
copies of religious texts) as well as time and other accommodations for religious exercise.85
8.12 INTELLECTUAL, PHYSICAL, AND RECREATIONAL ACTIVITIES
Detainees should be provided with reasonable access to intellectual, physical, and
recreational activities.86 Such opportunity is increasingly important as detention occurs for
longer periods of time.
Access to additional facilities for intellectual, physical, and recreational activities may be
made contingent on compliance with camp rules.87 Education programs may be offered to
discourage violent extremism.88
84 Consider AP II art. 5(1)(d) (“They shall be allowed to practise their religion and, if requested and appropriate, to
receive spiritual assistance from persons, such as chaplains, performing religious functions;”).
85 For example, Admiral Patrick Walsh et al., Department of Defense, Review of Department Compliance with
President’s Executive Order on Detainee Conditions of Confinement, 25 (2009) (“All detainees [at Guantanamo] are
provided one Koran in the language of their choice, in addition to an Arabic Koran and TafSeer. All detainees are
provided prayer beads, cap, rug, and current prayer schedule. These items are retained by all detainees regardless of
disciplinary status, unless deliberately used for self-harm or as a weapon. … Guards observe silence during all
prayer times. A monthly prayer schedule is published and call to prayer is sounded five times daily in all camps.
Prayer is led within each camp and block by a detainee-selected prayer leader. In Camps 2, 3, 5, 6, and Echo group
prayer is typically conducted by detainees from their individual cells. When this occurs, the food tray access doors
of the prayer leaders are lowered to facilitate call to prayer on each block/tier. At times when detainees are engaged
in group or communal activities and prayer call sounds, prayer is led by prayer leaders in person. In Camps 4 and
Iguana, group prayer is conducted in communal areas of the camps. At Camp 7, prayer is conducted individually in
their cells. Guard movement and activity is limited to only those actions required to maintain security. Visual
signals are placed on each block/tier signifying quiet time. Each detainee cell and common area includes an arrow
pointing towards Mecca.”).
86 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3b(1) (Aug. 19, 2014) (“Humane treatment
includes: … (b) Reasonable access to the open air, reasonable educational and intellectual activities, … .”);
Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶9.3 (“Health and hygiene factors
that need to be addressed include … ensuring that detainees are permitted to engage in exercise regimes, including
in the open air, … .”). Compare § 9.16 (Intellectual, Physical, and Recreational Activities); § 10.16 (Intellectual,
Physical, and Recreational Activities).
87 For example, Admiral Patrick Walsh et al., Department of Defense, Review of Department Compliance with
President’s Executive Order on Detainee Conditions of Confinement, 11 (2009) (“Camp 4 [at Guantanamo], first
occupied in February 2003, offers communal living, numerous recreation facilities, education and intellectual
stimulation programs, and houses detainees considered the most compliant with camp rules. Unlike other camps,
Camp 4 offers communal living in open-bay barracks with open access to fresh air in outdoor recreation and
communal facilities throughout the day. It includes additional access to large recreation areas equipped with a
basketball court, volleyball court, and soccer facility, during a specified four-hour period each day. Camp 4 has a
media center equipped with satellite television, bench seating, and a classroom used to teach literacy and art.”).
88 For example, Charles A. Allen, Deputy General Counsel, Department of Defense, Alternatives to Prosecution for
War Crimes in the War on Terrorism, 17 TRANSNATIONAL LAW & CONTEMPORARY PROBLEMS 121, 137 (2008)
(“For persons in detention in Iraq, MNF-I [Multi-National Force-Iraq] has a reintegration program to try to influence
detainees not to join or rejoin the insurgency, but rather to reintegrate peacefully into society. This effort focuses on
502
8.13 ADEQUATE WORKING CONDITIONS
If made to work, detainees shall have the benefit of working conditions and safeguards
similar to those enjoyed by the local civilian population.89
8.13.1 Prohibition on Slavery. Slavery and the slave trade in all their forms are
prohibited.90 For example, enforced prostitution is prohibited.91
8.14 PROCEDURES FOR DETENTION
8.14.1 Informing of Reasons for Detention. Detainees shall be informed promptly of the
reasons for their detention in a language that they understand.92
A prompt notification should generally occur within 10 days of detention.93 The
notification should ensure that the detainee adequately understands the general reason for
detention (e.g., security reasons, participation in hostilities or association with an armed group
that is engaged in hostilities, suspect or witness in law enforcement proceedings).94 When
feasible, more specific information should be provided to the detainee so that he or she may
participate in subsequent review procedures from an informed position.95
education. Detainees are provided access to moderate television, radio, and newspaper alternatives to extremist
messages. The reintegration program for adults includes instruction in reading, writing, and mathematics. The
program for juveniles includes both primary and secondary school instruction. In addition, detainees are offered
classes on democracy, the Iraqi constitution, and the Iraqi government.”).
89 Consider AP II art. 5(1) (Persons deprived of their liberty for reasons related to an non-international armed
conflict “shall, if made to work, have the benefit of working conditions and safeguards similar to those enjoyed by
the local civilian population.”).
90 Consider AP II art. 4(2)(f) (prohibiting “slavery and the slave trade in all their forms;”).
91 Refer to § 8.2.2.1 (Protection Against Rape, Enforced Prostitution, and Other Indecent Assault).
92 See Copenhagen Process: Principles and Guidelines, ¶7 (“Persons detained are to be promptly informed of the
reasons for their detention in a language that they understand.”). Consider AP I art. 75(3) (“Any 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.”).
93 ICRC AP COMMENTARY 876 (¶3072) (“‘Promptly’: unfortunately this expression is rather imprecise. … [I]t is
difficult to determine a precise time limit, but ten days would seem the maximum period.”).
94 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶1.3 (“A person may be
detained for a number of different reasons, including, posing a threat to the security of the military operation, for
participating in hostilities, for belonging to an enemy organised armed group, for his or her own protection, or if the
person is accused of committing a serious criminal offence.”).
95 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines, ¶7.1 (“Informing the
detainee of the reasons for detention seeks to ensure that the detainee adequately understands the basis of detention,
and enables the detainee’s participation in subsequent review procedures from an informed position. To the fullest
extent feasible the reasons for detention should provide the detainee with information regarding the circumstances
that form the basis for detention. Operational necessities or resource constraints, such as force protection or the
availability of interpreters, may sometimes make it difficult to advise the detainee of the specific reasons for the
detention at the precise moment of detention. The term ‘promptly’ is used to suggest that detainees should be
advised of the reasons for detention in a reasonable time, taking into account other essential tasks and resource
limitations that may affect the detaining authority’s ability to inform the detainee. When feasible, more specific
503
8.14.2 Review of Continued Detention for Security Reasons. DoD practice has been to
review periodically the detention of all persons not afforded POW status or treatment.96 A
detainee who has been deprived of liberty for security reasons is to have, in addition to a prompt
initial review, the decision to detain reconsidered periodically by an impartial and objective
authority that is authorized to determine the lawfulness and appropriateness of continued
detention.97
The authority conducting the review is not necessarily outside the military, and often
would be a military commander.98
There is no fixed requirement regarding how often the review must occur, and the period
between reviews will depend on a variety of factors, including: (1) operational necessities or
resource constraints, such as force protection, the availability of interpreters, or large numbers of
detainees; (2) the thoroughness of the review process; and (3) whether there is a true prospect
that the legal or factual predicates justifying detention have changed.99
information should be provided to the detainee so that he or she may participate in subsequent review procedures
from an informed position.”).
96 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3i (Aug. 19, 2014) (“DoD personnel will
review periodically the detention of all individuals in DoD custody or control who do not receive the protections
afforded POWs.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee Program, ¶4.8 (Sept. 5, 2006)
(“Detainees under DoD control who do not enjoy prisoner of war protections under the law of war shall have the
basis for their detention reviewed periodically by a competent authority.”).
97 See Copenhagen Process: Principles and Guidelines ¶12 (“A detainee whose liberty has been deprived for
security reasons is to, in addition to a prompt initial review, have the decision to detain reconsidered periodically by
an impartial and objective authority that is authorised to determine the lawfulness and appropriateness of continued
detention.”). Compare § 10.9.2.3 (Reconsideration and Periodic Review); § 10.9.3.1 (Internment or Assigned
Residence for Imperative Reasons of Security).
98 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶12.2 (“The ‘authority’
conducting the review must be objective and impartial but not necessarily outside the military. Although there is no
requirement for the authority to be a judge or lawyer, he or she should be supported by a legal adviser. The
authority must have sufficient information available to make an assessment of the legality and propriety of
continued detention; and must consider both the legal and factual basis for detention. The authority must also be
able to evaluate the relevant information and make relevant conclusions such as whether the detainee continues to
constitute a threat to security. Furthermore, the authority must make decisions based on the circumstances of each
specific case; and each decision must be taken with respect to the individual involved. The authority must have
sufficient freedom to make a good faith judgment without any outside interference. In order for the review to be
effective it is necessary that the reviewing authority has the power to determine the lawfulness and appropriateness
of continued detention of the detainee.”).
99 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶12.3 (“Security
detainees are to have their continued detention reviewed periodically or, where practicable, when new information
becomes available. It is, however, difficult to provide a precise time limit to indicate when the decision to detain
should be reconsidered or further reviewed. Operational necessities or resource constraints, such as force protection,
the limited availability of interpreters or large case-loads of review sometimes make it difficult to reconsider the
decision to detain frequently or at short intervals. Reviews should, however, occur as often as necessary, generally
every six months. The length of time between reviews may also depend on the thoroughness of the review process
and on whether there is a true prospect that the legal or factual predicates justifying detention have changed. More
thorough reviews may require more resources and take place over longer intervals.”).
504
8.14.3 Release When the Circumstances Justifying Detention Have Ceased to Exist.
Except in cases of arrest or detention for penal offenses, 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.100
8.14.3.1 Participants in Hostilities or Persons Belonging to Armed Groups That
Are Engaged in Hostilities. For persons who have participated in hostilities or belong to armed
groups that are engaged in hostilities, the circumstance that justifies their continued detention is
the continuation of hostilities.101 Thus, release of such persons is generally only required after
the conflict has ceased.102 As a matter of policy, release of lawfully detained persons often
occurs before the conclusion of hostilities.103
However, even after hostilities have ceased, other circumstances may warrant continued
detention of such persons. For example, persons who have participated in hostilities on behalf of
non-State armed groups might be detained pending law enforcement proceedings and, after a
conviction, pursuant to a lawful sentence.104
8.14.3.2 Safe and Orderly Release. If it is decided to release persons deprived of
their liberty, necessary measures to ensure their safety shall be taken by those so deciding.105
For example, detainees should not be released into a situation in which the detainee would be
attacked by hostile elements upon release.106
100 Consider AP I art. 75(3) (“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.”). Compare § 9.37 (Release and Repatriation After Hostilities); § 10.9.5 (Release
As Soon As Reasons for Internment No Longer Exist).
101 See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 521 (2004) (plurality) (“we understand Congress’ grant of authority
[under the AUMF] for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration
of the relevant conflict, and our understanding is based on longstanding law-of-war principles.”); Al-Bihani v.
Obama, 590 F.3d 866, 874 (2010) (rejecting the argument that Taliban fighters must be released because the conflict
had formally concluded as a principle that “would make each successful campaign of a long war but a Pyrrhic
prelude to defeat” and under which “the victors would be commanded to constantly refresh the ranks of the fledgling
democracy’s most likely saboteurs.”). Cf. Stewart v. Kahn, 78 U.S. 493, 507 (1870) (“In the latter case, the [war]
power is not limited to victories in the field and the dispersion of the insurgent forces. It carries with it inherently
the power to guard against the immediate renewal of the conflict and to remedy the evils which have arisen from its
rise and progress.”).
102 Compare § 9.37 (Release and Repatriation After Hostilities).
103 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3m(2) (Aug. 19, 2014) (“Unprivileged
belligerents may be released or transferred while active hostilities are ongoing if a competent authority determines
that the threat the individual poses to the security of the United States can be mitigated by other lawful means. Such
mitigation may involve credible assurances that a receiving country will take appropriate steps to mitigate any threat
the detainee poses to the security of the United States and its interests, parole agreements by the detainee, or other
agreements with the government of the receiving State.”).
104 Compare § 9.37.4.3 (POWs Undergoing Criminal Proceedings for an Indictable Offense).
105 Consider AP II art. 5(4) (“If it is decided to release persons deprived of their liberty, necessary measures to
ensure their safety shall be taken by those so deciding.”).
106 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶4.10 (“Detaining
authorities are to ensure that necessary measures are taken to ensure the safety of released detainees. For example, a
505
The obligation to release detainees in a safe and orderly manner, as well as operational
necessities (e.g., force protection) and logistical constraints (e.g., the limited availability of
transport), may make it difficult to release a detainee at the precise moment that the
circumstances justifying detention cease.107 Continued detention in order to facilitate a safe and
orderly release may be necessary.108
8.14.4 Transfers of Detainees. Because the transfer of a detainee from U.S. custody to
another entity or State may implicate certain U.S. legal obligations or policies, detainees should
not be transferred to another State or entity without proper authorization.109
8.14.4.1 U.S. Policy Prohibiting Transfers in Cases in Which Detainees Would
Likely Be Tortured. U.S. policy provides that no person shall be transferred to another State if it
is more likely than not that the person would be tortured in the receiving country, regardless of
whether the person is physically present in the United States or whether such transfer would
otherwise be consistent with applicable law.110
8.15 NATIONAL ACCOUNTABILITY FOR DETENTION
A proper accounting of detainees is an important part of a State’s implementation of the
requirements of humane treatment.
detainee is not to be released in a location where the conditions are such that the detainee may be threatened or
attacked by hostile or malign elements upon release.”).
107 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶4.8 (“It is difficult to
provide a precise time limit to indicate how soon a detainee should be released after the circumstances justifying
detention have ceased to exist. Operational necessities, such as force protection, the safety of a detainee, or the
limited availability of transport sometimes make it difficult to release a detainee at the precise moment that the
circumstances justifying detention cease.”).
108 Compare § 9.37.3 (Without Delay).
109 For example, DOD DIRECTIVE 2310.01E, DoD Detainee Program, ¶3m (Aug. 19, 2014) (“No detainee will be
released, repatriated, or transferred out of DoD custody or control except in accordance with applicable law,
regulation, policy, and other issuances.”); DOD DIRECTIVE 2310.01E, The Department of Defense Detainee
Program, ¶4.6 (Sept. 5, 2006) (“No detainee shall be released or transferred from the care, custody, or control of a
DoD Component except in accordance with applicable law, regulation, policy, and other issuances.”).
110 See, e.g., Munaf v. Geren, 553 U.S. 674, 702 (2008) (“Indeed, the Solicitor General states that it is the policy of
the United States not to transfer an individual in circumstances where torture is likely to result.”); PUBLIC LAW 105-
277, § 2242(a) (Oct. 21, 1998), codified at 8 U.S.C. § 1231 note (“It shall be the policy of the United States not to
expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial
grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person
is physically present in the United States.”). One of the formal understandings of the United States made upon
ratification of the Convention Against Torture provided that “the United States understands the phrase, ‘where there
are substantial grounds for believing that he would be in danger of being subjected to torture,’ as used in article 3 of
the Convention, to mean ‘if it is more likely than not that he would be tortured.’” United States, Statement on
Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Dec. 10, 1984, Oct. 21, 1994, 1830 UNTS 320, 322.
506
8.15.1 Registration of Detainees. The detaining authority should register detainees
promptly.111 Detainees should be registered within a reasonable time, taking into account other
essential tasks and resource limitations that may affect the detaining authority’s ability to register
detainees.112
Registration of detainees assists in ensuring that all detainees can be accounted for and
that allegations of illegal detention can be addressed.113 DoD practice has been to register
detainees with the National Detainee Reporting Center that is also used to account for the
detention of POWs under the GPW and protected persons under the GC.114
8.15.2 Records of Detainee Property. DoD practice has been for property in the
possession of detainees to be inventoried, and for records of such property to be maintained in
order to maintain accountability of it (e.g., to prevent theft) and to ensure its lawful
disposition.115
111 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶8 (“Persons detained are
to be promptly registered by the detaining authority.”). For example, DOD DIRECTIVE 2310.01E, DoD Detainee
Program, ¶3d (Aug. 19, 2014) (“Detainees will be registered, and property in their possession will be inventoried.
Records of their detention and such property will be maintained according to applicable law, regulation, policy, and
other issuances.
(1) DoD Components will maintain full accountability for all detainees under DoD control.
Detainees will be assigned an Internment Serial Number (ISN) normally within 14 days after their capture by, or
transfer to, the custody or control of DoD personnel, barring exceptional circumstances.”); DOD DIRECTIVE
2310.01E, The Department of Defense Detainee Program, ¶4.4.1 (Sept. 5, 2006) (“Detainees shall be assigned an
Internment Serial Number (ISN) as soon as possible after coming under DoD control, normally within 14 days of
capture. DoD Components shall maintain full accountability for all detainees under DoD control.”).
112 See also Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶8.3 (“It is difficult to
provide a precise time limit to indicate when a detainee should be registered. Operational necessities or resource
constraints, such as force protection, or the limited availability of interpreters sometimes make it difficult to register
a detainee at the precise moment of detention. The term ‘promptly’ is used to suggest that detainees should be
registered within a reasonable time, taking into account other essential tasks and resource limitations that may affect
the detaining authority’s ability to register detainees.”).
113 See Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines ¶8.1 (“Registration of
detainees assists in ensuring that all detainees can be accounted for and that allegations of (illegal) detention can be
addressed.”).
114 For example, Declaration of Vice Admiral Robert S. Harward, ¶8 (Dec. 17, 2010), attached to Hamidullah v.
Gates, Response to Order to Show Cause and Motion to Dismiss, Civil Action No. 10-CV-758 (D.D.C. Dec. 17,
2010) (“DoD has registered individuals held under its control at the DFIP with the National Detainee Reporting
Center (‘NDRC’) -- which accounts for persons who receive Internment Serial Numbers issued by DoD while in
DoD’s custody -- and with the International Committee of the Red Cross (‘ICRC’).”). Compare § 9.31.4 (U.S.
Practice in Reporting to the ICRC Central Tracing Agency); § 10.31.4 (U.S. Practice in Reporting to the ICRC
Central Tracing Agency).
115 Compare § 9.7.4 (Money and Articles of Value); § 10.19.1 (Money and Valuables in the Internee’s Possession).
507
8.16 CRIMINAL PROCEDURE AND PUNISHMENT
The passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court affording all the judicial guarantees that are
recognized as indispensable by civilized peoples are prohibited.116
The specific rules addressed in this section may be understood as examples of such
guarantees.117
8.16.1 No Private Rights Created by This Section in Particular. As with all other sections
of this manual, Section 8.16 does not create any private rights.118 The competent prosecuting
authorities shall ensure that the requirements reflected in this section are met.
8.16.2 General Limits on Punishments.
8.16.2.1 Individual Penal Responsibility and No Collective Punishment. No one
shall be convicted of an offense except on the basis of individual penal responsibility.119
Collective punishments are prohibited. Collective punishments have been specifically
prohibited with respect to POWs, protected persons under the GC, and inhabitants of occupied
territory, and also in connection with non-international armed conflict.120 This prohibition
includes penalties of any kind inflicted upon persons or groups of persons for acts that these
persons have not committed, including administrative penalties.121 Punishment on the basis of
116 See GWS art. 3 (prohibiting with respect to persons taking no active part in the hostilities “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.”); GWS-SEA art. 3
(same); GPW art. 3 (same); GC art. 3 (same). Consider AP I art. 75(4) (“No sentence may be passed and no penalty
may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a
conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles
of regular judicial procedure, which include the following:”); AP II art. 6(2) (“No sentence shall be passed and no
penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a
court offering the essential guarantees of independence and impartiality.”).
117 ICRC AP COMMENTARY 878 (¶3084) (“Article 3 [of the 1949 Geneva Conventions] relies on the ‘judicial
guarantees which are recognized as indispensable by civilized peoples’, while Article 75 [of AP I] rightly spells out
these guarantees. Thus this article, and to an even greater extent, Article 6 of Protocol II (Penal prosecutions), gives
valuable indications to help explain the terms of Article 3 on guarantees.”).
118 Refer to § 1.1.1 (Purpose).
119 Consider AP I art. 75(4)(a) (“No one shall be convicted of an offence except on the basis of individual penal
responsibility;”); AP II art. 6(2)(b) (“No one shall be convicted of an offence except on the basis of individual penal
responsibility;”).
120 Refer to § 9.26.6 (Prohibited Penalties); § 10.5.3.2 (Collective Penalties and Measures of Intimidation or
Terrorism); § 11.6.2.2 (Prohibition Against General Penalties in Occupied Territory); § 17.6.7 (Prohibition on
Collective Punishment).
121 GC COMMENTARY 225 (“This paragraph then lays a prohibition on collective penalties. This does not refer to
punishments inflicted under penal law, i.e. sentences pronounced by a court after due process of law, but penalties of
any kind inflicted on persons or entire groups of persons, in defiance of the most elementary principles of humanity,
for acts that these persons have not committed.”).
508
conspiracy, joint criminal enterprise, and other theories of secondary liability are not prohibited
by this rule.122
8.16.2.2 No Crime or Punishment Without Prior Law. No one shall be accused or
convicted of a criminal offense on account of any act or omission that did not constitute a
criminal offense under the national or international law to which he or she was subject at the
time when it was committed; nor shall a heavier penalty be imposed than that which was
applicable at the time when the criminal offense was committed; if, after the commission of the
offense, provision is made by law for the imposition of a lighter penalty, the offender shall
benefit thereby.123
8.16.2.3 No Repetition of Punishment. No one shall be prosecuted or punished by
the same party for an offense in respect of which a final judgment acquitting or convicting that
person has been previously pronounced under the same law and judicial procedure.124
8.16.2.4 Limitations on the Death Penalty. The death penalty shall not be
pronounced on persons who were under the age of eighteen years at the time of the offense and
shall not be carried out on pregnant women or mothers of young children.125
8.16.3 Rights of Defense and Trial Procedure. The procedure shall provide for an
accused to be informed without delay of the particulars of the notice alleged against him or her
and shall afford the accused before and during his or her trial all necessary rights and means of
defense.126
122 Refer to § 18.23 (Theories of Individual Criminal Liability).
123 Consider AP I art. 75(4)(c) (“No one shall be accused or convicted of a criminal offence on account of any act or
omission which did not constitute a criminal offence under the national or international law to which he was subject
at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time
when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the
imposition of a lighter penalty, the offender shall benefit thereby;”); AP II art. 6(2)(c) (“No one shall be accused or
convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under
the national or international law to which he was subject at the time when it was committed; nor shall a heavier
penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after
the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall
benefit thereby;”).
124 Consider AP I art. 75(4)(h) (“No one shall be prosecuted or punished by the same Party for an offence in respect
of which a final judgement acquitting or convicting that person has been previously pronounced under the same law
and judicial procedure;”).
125 Consider AP II art. 6(4) (“The death penalty shall not be pronounced on persons who were under the age of
eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young
chidren [sic].”).
126 Consider AP I art. 75(4)(a) (“The procedure shall provide for an accused to be informed without delay of the
particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary
rights and means of defence;”); AP II art. 6(2)(a) (“The procedure shall provide for an accused to be informed
without delay of the particulars of the offence alleged against him and shall afford the accused before and during his
trial all necessary rights and means of defence;”).
509
8.16.3.1 Presumption of Innocence. Anyone charged with an offense is presumed
innocent until proved guilty according to law.127
8.16.3.2 Right to Trial in Presence. Anyone charged with an offense shall have
the right to be tried in his or her presence.128
8.16.3.3 No Compulsory Self-Incrimination. No one shall be compelled to testify
against himself or herself or to confess guilt.129
8.16.3.4 Right to Obtain and Examine Witnesses. Anyone charged with an
offense shall have the right to examine, or have examined, the witnesses against him or her and
to obtain the attendance and examination of witnesses on his or her behalf under the same
conditions as witnesses against him or her.130
8.16.3.5 Right to Have a Public Judgment. Anyone prosecuted for an offense
shall have the right to have the judgment pronounced publicly.131
8.16.3.6 Advice on Appellate Procedure. A convicted person shall be advised on
conviction of his or her judicial and other remedies, and of the time-limits within which they
may be exercised.132
127 Consider AP I art. 75(4)(d) (“Anyone charged with an offence is presumed innocent until proved guilty
according to law;”); AP II art. 6(2)(d) (“Anyone charged with an offence is presumed innocent until proved guilty
according to law;”).
128 Consider AP I art. 75(4)(e) (“Anyone charged with an offence shall have the right to be tried in his presence;”);
AP II art. 6(2)(e) (“Anyone charged with an offence shall have the right to be tried in his presence;”).
129 Consider AP I art. 75(4)(f) (“No one shall be compelled to testify against himself or to confess guilt;”); AP II art.
6(2)
(f) (“No one shall be compelled to testify against himself or to confess guilt.”).
130 Consider AP I art. 75(4)(g) (“Anyone charged with an offence shall have the right to examine, or have examined,
the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;”).
131 Consider AP I art. 75(4)(i) (“Anyone prosecuted for an offence shall have the right to have the judgement
pronounced publicly;”).
132 Consider AP I art. 75(4)(j) (“A convicted person shall be advised on conviction of his judicial and other remedies
and of the time-limits within which they may be exercised.”); AP II art. 6(3) (“A convicted person shall be advised
on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.”).
510
IX - Prisoners of War (POWs)
Chapter Contents
9.1 Introduction
9.2 General Principles Applicable to the Treatment of POWs
9.3 POW Status
9.4 National-Level GPW Implementation Measures
9.5 Humane Treatment and Basic Protections for POWs
9.6 Security Measures With Respect to POWs
9.7 POW Effects and Articles of Personal Use
9.8 Interrogation of POWs
9.9 Evacuation From Combat Areas
9.10 Transit or Screening Facilities
9.11 General Conditions in POW Camps: Location, Safety, Hygiene, and Living
Conditions
9.12 Segregation of POWs
9.13 Food, Water, Tobacco, and Clothing for POWs
9.14 Medical Attention for Interned POWs
9.15 Religious Exercise by POWs
9.16 Intellectual, Physical, and Recreational Activities
9.17 Canteens for POWs
9.18 Financial Resources of POWs
9.19 POW Labor
9.20 POW Correspondence and Relief Shipments
9.21 Private Legal Matters of POWs
9.22 Internal Discipline of POW Camps
9.23 POW Requests, Complaints, and Reports About Conditions of Captivity
9.24 POW Representatives
9.25 POW Escapes
9.26 General Principles Applicable to POW Discipline
9.27 Disciplinary Proceedings and Punishment
9.28 Judicial Proceedings and Punishment
9.29 Transfer of POWs From the POW Camp
9.30 Transfer of POWs to the Custody of Another Detaining Power
9.31 National Accounting of the Detention of POWs
9.32 Role of the Protecting Power in the GPW
9.33 Access to POWs by the Protecting Powers, ICRC, and Relief Organizations
9.34 Death of POWs
9.35 Exchanges and Other Release and Repatriation of POWs During Hostilities
9.36 Direct Repatriation and Accommodation in Neutral Countries During
Hostilities
9.37 Release and Repatriation After Hostilities
9.38 Procedure on Release and Repatriation After Hostilities
9.39 Code of Conduct for U.S. Armed Forces
511
9.1 INTRODUCTION
This Chapter addresses the treatment of prisoners of war (POWs).
9.1.1 Brief History of POW Law. States have made significant humanitarian advances in
the international law relating to the treatment of POWs.1 Before the modern law of war, POWs
were often put to death, held for ransom or as hostages, or sold into slavery.
Gradually, protections for POWs, such as providing for their repatriation at the end of
conflict without ransom, were concluded in treaties.2 The United States concluded bilateral
treaties for the humane treatment and protection of POWs, written with a view towards
forbidding abuses that occurred during the Revolutionary War.3 Eventually multilateral treaties
for the protection of POWs were concluded, which also drew from the experience of POWs
during prior conflicts.4 War crimes trials after World War II for POW mistreatment recognized
that the humane treatment of POWs was required under customary international law.5
After World War II, the 1949 Geneva Conventions were concluded, and more than 190
States, including the United States, are Parties to the GPW.6
9.1.2 Interpretation and Application of the GPW. The GPW underlies most of the
international law rules applicable to the United States for the treatment of POWs.
The GPW’s provisions should be interpreted in light of the principles that underlie POW
detention and, in particular, in light of the goal of advancing the humane treatment of POWs.7
1 WINTHROP, MILITARY LAW & PRECEDENTS 788 (“Modern sentiment and usage have induced in the practice of war
few changes so marked as that which affects the status of prisoners of war. The time has long passed when ‘no
quarter’ was the rule on the battlefield, or when a prisoner could be put to death by virtue simply of his capture.”).
2 See, e.g., Treaty of Peace Between Spain and the Netherlands, Signed at Munster, in Westphalia, on 30 January
1648, LEVIE, DOCUMENTS ON POWS 5 (“LXIII. All prisoners of war shall be delivered up by both sides, without the
payment of any ransom, and without any distinction and without exception with respect to the prisoners who served
outside of the Low Countries and under other standards and flags than those of the said Sovereign States.”).
3 For example, Treaty of Amity and Commerce between His Majesty the King of Prussia and the United States of
America, art. 24, Sept. 10, 1785, 18 STAT. 641, 647.
4 Refer to § 19.8.1 (1899 Hague II); § 19.13.2 (1929 GPW).
5 See, e.g., United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE
IMT 232 (“The argument in defense of the charge with regard to the murder and ill-treatment of Soviet prisoners of
war, that the U.S.S.R. was not a party to the [1929] Geneva Convention, is quite without foundation.”); United
States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE THE NMT 495
(quoting the International Military Tribunal at Nuremberg’s discussion of the murder and maltreatment of Soviet
POWs and noting: “All of these unlawful acts, as well as employment under inhumane conditions and at prohibited
labor, is shown by the record in this case. They were deliberate, gross and continued violations of the customs and
usages of war as well as the Hague Regulations (1907) and the Geneva Convention (1929) and of international
common law.”).
6 Refer to § 19.16 (1949 Geneva Conventions).
7 See Jack L. Goldsmith III, Assistant Attorney General, “Protected Person” Status in Occupied Iraq Under the
Fourth Geneva Convention, Mar. 18, 2004, 28 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 35, 55 (“Our recourse
to fundamental principles to address an ambiguity in article 4 is not unusual. In the context of the law of armed
conflict, interpreters faced with changed or unexpected circumstances have not hesitated to resort to a treaty’s
512
The subsequent practice of States in applying the GPW could assist in interpreting its provisions
because States’ decades of experience in applying the GPW may be very helpful in
understanding its requirements.8
9.1.2.1 GPW - Notes on Terminology. “Prisoner of war” (abbreviated POW in
this manual) does not refer to any person who is held prisoner in connection with a war; rather,
POW is term of art that is defined and used in the GPW.9
In the GPW, the Detaining Power refers to the State that holds the POW.
In the GPW, the Power on which the POWs depend means the State that the POWs
served before falling into the power of the enemy. (In some cases, this State might be different
from the POW’s State of nationality.)
In the GPW, the Protecting Power refers to a neutral State that helps implement the
GPW.10
9.1.2.2 Special Agreements Under the GPW. Under the GPW, States may
conclude a variety of special agreements during international armed conflict to facilitate the
protection of POWs.
The GPW specifically provides for agreements:
• to entrust to an effective and impartial organization the duties of the Protecting Powers;11
• to establish a system for marking POW camps;12
• on how to allocate the profits made by camp canteens in case of a general repatriation;13
• to establish the corresponding ranks for their medical personnel and staff of National Red
Cross Societies and other Voluntary Aid Services in order to help determine the senior
medical officer in POW camps;14
fundamental principles to avoid a non-contextual reading of a treaty term that, wrenched from its original context,
might lead to a conclusion that does violence to the treaty’s object and purpose. And they have done so even when
construing treaty text far less ambiguous than article 4.”). Refer to § 9.2 (General Principles Applicable to the
Treatment of POWs).
8 Refer to § 1.7.4 (Use of Certain Subsequent Practice in Treaty Interpretation).
9 Refer to § 9.3 (POW Status).
10 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).
11 Refer to § 18.15.2.1 (Agreement for an Impartial and Effective Organization to Perform Protecting Power Duties
Under the 1949 Geneva Conventions).
12 Refer to § 9.4.2.3 (Location and Marking of POW Camps).
13 Refer to § 9.17.3.2 (Disposition of Canteen Profits Upon Camp Closure).
14 Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).
513
•
for the relief of retained personnel and the procedure for relief;15
•
to modify the amount of advances of pay due to POWs based on their military rank
during and at the close of hostilities;16
•
to notify periodically, through the Protecting Power, the account balances of POWs;17
•
to vary the required information provided for in the list of all appropriate particulars of all
POWs whose captivity has been terminated;18
•
regarding individual parcels and collective relief shipments to POWs;19
•
for the accommodation in neutral countries of seriously wounded and sick POWs;20
•
for the direct repatriation or internment in a neutral country of able-bodied POWs who
have undergone a long period of captivity;21
•
to determine the conditions that POWs who are accommodated in a neutral country must
fulfill in order to permit their repatriation, and to establish the status of POWs
accommodated in a neutral country;22
•
to determine the equitable apportionment of costs of and a plan for repatriation for when
hostilities have ceased;23
•
to regulate the conditions of the transport of personal effects and the payment of the costs
associated with the repatriation of POWs;24
•
to establish a commission to search for dispersed POWs and to ensure their repatriation
with the least possible delay;25 and
•
on the procedure, or to select an umpire who will decide the procedure, to be followed for
an inquiry concerning any alleged violation of the GPW.26
15 Refer to § 7.9.5.8 (Agreements on Possible Relief of Retained Personnel).
16 Refer to § 9.18.3 (Advance of Pay).
17 Refer to § 9.18.6.3 (Periodic Notification of the Amount of the Accounts of POWs).
18 Refer to § 9.18.6.4 (Statements of Credit Balance on Termination of Captivity).
19 Refer to § 9.20.3.3 (Special Agreements Concerning Relief Shipments).
20 Refer to § 9.36.2 (Accommodation in Neutral Countries).
21 Refer to § 9.36.2 (Accommodation in Neutral Countries).
22 Refer to § 9.36.3.1 (Repatriation From a Neutral State).
23 Refer to § 9.37.6 (Costs of Repatriation at the Close of Hostilities).
24 Refer to § 9.38.3 (Personal Property); § 9.31.2.3 (Collection of Personal Valuables Left by POWs).
25 Refer to § 9.37.5 (Commissions to Search for Dispersed POWs).
514
In addition to the agreements expressly provided for in Articles 10, 23, 28, 33, 60, 65, 66,
67, 72, 73, 75, 109, 110, 118, 119, 122, and 132 of the GPW, Parties to the GPW may conclude
other special agreements for all matters concerning which they may deem it suitable to make
separate provision.27 No special agreement shall adversely affect the situation of POWs, as
defined by the GPW, nor restrict the rights that it confers upon them.28
POWs shall continue to have the benefit of such agreements as long as the GPW is
applicable to them, except where express provisions to the contrary are contained in these or
subsequent agreements, or where more favorable measures have been taken with regard to them
by one or other of the parties to the conflict.29
9.1.3 DoD Policies and Regulations for the Treatment of POWs. DoD policies and
regulations regarding the treatment of POWs provide authoritative guidance for DoD personnel
and fill an important role in implementing the complex requirements of the GPW.30
Practitioners are advised to consult all applicable policies and regulations, as these, in many
cases, exceed the requirements of the GPW, U.S. statutes, and Executive Orders.
9.2 GENERAL PRINCIPLES APPLICABLE TO THE TREATMENT OF POWS
Certain principles provide the foundation for the rules governing the treatment of POWs.
9.2.1 Detention Is Non-Punitive in Character. The detention of POWs is not punishment,
and is devoid of all penal character.31 It is intended to disable the POW and to prevent him or
her from further participation in hostilities.32
9.2.2 Responsibility of the Detaining Power. POWs are in the hands of the enemy
Power, and not of the individuals or military units who have captured them.33 Irrespective of the
26 Refer to § 18.14.1 (Inquiry Procedure in the 1949 Geneva Conventions).
27 GPW art. 6 (“In addition to the agreements expressly provided for in Articles 10, 23, 28, 33, 60, 65, 66, 67, 72,
73, 75, 109, 110, 118, 119, 122 and 132, the High Contracting Parties may conclude other special agreements for all
matters concerning which they may deem it suitable to make separate provision.”).
28 GPW art. 6 (“No special agreement shall adversely affect the situation of prisoners of war, as defined by the
present Convention, nor restrict the rights which it confers upon them.”).
29 GPW art. 6 (“Prisoners of war shall continue to have the benefit of such agreements as long as the Convention is
applicable to them, except where express provisions to the contrary are contained in the aforesaid or in subsequent
agreements, or where more favourable measures have been taken with regard to them by one or other of the Parties
to the conflict.”).
30 Refer to § 18.7 (Instructions, Regulations, and Procedures to Implement and Enforce the Law of War).
31 WINTHROP, MILITARY LAW & PRECEDENTS 788 (“It is now recognized that—‘Captivity is neither a punishment
nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’”); Francis
Lieber, The Status of Rebel Prisoners of War, reprinted in II THE MISCELLANEOUS WRITINGS OF FRANCIS LIEBER
293 (1881) (“A belligerent is not a criminal, and the imprisonment of a captured belligerent is not a punishment. A
prisoner of war is no convict; his imprisonment is a simple war measure.”).
32 United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 232
(quoting approvingly a German Admiral who argued for the humane treatment of POWs during World War II, “war
captivity is neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent
the prisoners of war from further participation in the war.”).
515
individual responsibilities that may exist, the Detaining Power is responsible for the treatment
given POWs.34
9.2.3 Responsibility of POWs. Just as the Detaining Power is responsible for the
treatment of POWs, POWs also have certain responsibilities related to their detention.
POWs continue to have obligations to the Power on which they depend.35 POWs are also
obliged to obey the laws, regulations, and orders of the Detaining Power.36 Despite this general
obligation, POWs may not be punished in respect of their successful escape, if recaptured by the
Detaining Power.37
9.2.4 Humane Treatment. Humane treatment is a fundamental principle underlying the
GPW; it is always required.38 Moreover, interpretations of the GPW that provide for humane
treatment should be favored over rigid interpretations of the GPW that lead to results that would
be detrimental to the welfare of POWs.
9.2.5 Reciprocity in the Treatment of POWs. The rules for the treatment of POWs have
long been based on the principle that POWs should be treated as the Detaining Power would
want its forces held by the enemy to be treated.39 Aside from being legally required, the
33 GPW art. 12 (“Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units
who have captured them.”); 1929 GPW art. 2 (“Prisoners of war are in the power of the hostile Power, but not of the
individuals or corps who have captured them.”); HAGUE IV REG. art. 4 (“Prisoners of war are in the power of the
hostile Government, but not of the individuals or corps who capture them.”); LIEBER CODE art. 74 (“A prisoner of
war, being a public enemy, is the prisoner of the government, and not of the captor.”).
34 GPW art. 12 (“Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for
the treatment given them.”).
35 Refer to § 9.22.2 (POWs’ Status With Respect to Their Armed Forces).
36 Refer to § 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the
Detaining Power).
37 Refer to § 9.25.1 (No Punishment for Successful Escape).
38 Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).
39 For example, Basic Course in the Geneva Conventions of 1949 and Hague Convention No. IV of 1907: Lesson
Plan—First Hour, ¶6, Appendix A in DEPARTMENT OF THE ARMY SUBJECT SCHEDULE 27-1, The Geneva
Conventions of 1949 and Hague Convention No. IV of 1907, 6 (Aug. 29, 1975) (“Although we shall presently
discuss the most important of the many specific rules set out in these [1949 Geneva] Conventions, you should
always keep in mind that these rules are embodied in one general principle: treat all prisoners of war, civilians, or
other detained personnel humanely. … But, you ask, what does it mean to treat someone humanely? If you treat
such people as you would like to be treated were you captured or detained, you will be treating them humanely.
Remember that a PW is in your protective custody, and you cannot harm him.”); George Washington, Commander-
in-Chief of the Continental Army, Letter to Lieutenant General Thomas Gage, Head Quarters, Cambridge (Aug. 11,
1775), reprinted in JARED SPARKS, THE WRITINGS OF GEORGE WASHINGTON; PART SECOND, III 60 (1837) (“My
Duty now makes it necessary to apprize you, that for the future I shall regulate my Conduct towards those
Gentlemen, who are or may be in our Possession, exactly by the Rule you shall observe towards those of ours, now
in your Custody. If severity and hardship mark the line of your conduct, painful as it may be to me, your prisoners
will feel its effects. But if kindness and humanity are shown to ours, I shall with pleasure consider those in our
hands only as unfortunate, and they shall receive from me that treatment to which the unfortunate are entitled.”).
516
favorable treatment of POWs held by the U.S. armed forces can promote the favorable treatment
of members of the U.S. armed forces held by enemy States.40
A similar concept may also be found in provisions of the GPW that provide for the
treatment of POWs with reference to the treatment of the armed forces of the Detaining Power.
For example, POWs shall be quartered under conditions as favorable as those for the forces of
the Detaining Power who are billeted in the same area.41 Similarly, in judicial proceedings,
POWs should benefit from the same courts and same procedures as the members of the armed
forces of the Detaining Power.42
9.3 POW STATUS
9.3.1 POW Status Versus POW Protections. In some cases, the policy of the United
States has been to afford detainees certain POW protections even when they may not apply as a
matter of law.43 Certain POW protections may be afforded to an individual without affecting the
legal status of that individual or the legal status of a group to which that person belongs.44
9.3.2 Persons Entitled to POW Status. During international armed conflict, persons
entitled to POW status, if they fall into the power of the enemy, include:45
40 For example, Martin Tollefson, Enemy Prisoners of War, 31 IOWA LAW REVIEW 51, 56 footnote 8 (1946) (“The
writer of this law review article was a member of a committee of three officers sent by the Secretary of War to
inspect concentration camps, civilian internee camps, and prisoner-of-war camps in Germany immediately upon
their liberation. Testimony was frequently and freely given to these committee members by Americans held as
prisoners of war (not in concentration camps where American servicemen were not interned) to the effect that they
had been given better treatment as a result of the fair treatment given by the United States to German prisoners.
Occasionally testimony was given by interned Americans that they were of the opinion that the reason they survived
prisoner of war internment in Germany was the result of fair treatment of German prisoners.”).
41 Refer to 9.11.6 (Conditions of Living Quarters).
42 Refer to § 9.28.2 (Same Courts and Same Procedures).
43 For example, MAJOR GENERAL GEORGE S. PRUGH, LAW AT WAR: VIETNAM 1964-1973 66 (1975) (“The
classification of Viet Cong combatants and Viet Cong suspects posed an interesting legal problem. Because it
believed the Viet Cong were traitors and criminals, the Vietnam government was reluctant to accord prisoner of war
status to Viet Cong captives. Furthermore it was certainly arguable that many Viet Cong did not meet the criteria of
guerrillas entitled to prisoner of war status under Article 4, Geneva Prisoner of War Conventions. However, civil
incarceration and criminal trial of the great number of Viet Cong was too much for the civil resources at hand. In
addition, Article 22 prohibited the mingling of civil defendants with prisoners of war. By broadly construing Article
4, so as to accord full prisoner of war status to Viet Cong Main Force and Local Force troops, as well as regular
North Vietnamese Army troops, any Viet Cong taken in combat would be detained for a prisoner of war camp rather
than a civilian jail. The MACV policy was that all combatants captured during military operations were to be
accorded prisoner of war status, irrespective of the type of unit to which they belonged. Terrorists, spies, and
saboteurs were excluded from consideration as prisoners of war. Suspected Viet Cong captured under
circumstances not warranting their treatment as prisoners of war were handled as civilian defendants.”).
44 Compare § 17.2.3 (Application of Humanitarian Rules and the Legal Status of the Parties to the Conflict).
45 GPW art. 4A (“Prisoners of war, in the sense of the present Convention, are persons belonging to one of the
following categories, who have fallen into the power of the enemy: (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
517
• members of the armed forces of a State that is a party to the conflict, including;46
o deserters;47 and
o military medical and religious personnel not entitled to retained personnel status
(e.g., those not exclusively engaged in medical duties at the time of their
capture);48
• members of certain militia and volunteer corps;49
• members of regular armed forces who profess allegiance to a government or authority not
recognized by Detaining Power;50
• persons authorized to accompany the armed forces;51
• members of crews of merchant marine vessels or civil aircraft;52 and
• participants in a levée en masse.53
9.3.2.1 Persons Who Are Not Entitled to POW Status. Certain categories of
persons are not entitled to POW status:
• spies, saboteurs, and other persons engaging in similar acts behind enemy lines;54 and
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, such as civilian members of military aircraft crews, war correspondents, supply contractors,
members of labour units or of services responsible for the welfare of the armed forces, provided that they have
received authorization from the armed forces which they accompany, who shall provide them for that purpose with
an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, 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 armed units, provided they carry arms openly and respect the laws and customs of
war.”).
46 Refer to § 4.5 (Armed Forces of a State).
47 Refer to § 4.5.2.5 (Deserters).
48 Refer to § 4.9.2 (Requirements for Military Medical and Religious Status).
49 Refer to § 4.6 (Other Militia and Volunteer Corps).
50 Refer to § 4.5.3 (Regular Armed Forces Who Profess Allegiance to a Government or an Authority Not
Recognized by the Detaining Power).
51 Refer to § 4.15 (Persons Authorized to Accompany the Armed Forces).
52 Refer to § 4.16 (Crews of Merchant Marine Vessels or Civil Aircraft).
53 Refer to § 4.7 (Levée en Masse).
518
• persons who are nationals of the Detaining Power or its co-belligerents,55 such as a
defector who subsequently is captured by the force from which he or she defected.56
9.3.2.2 Examples of Categories of Persons Who Are Not Necessarily Excluded
From POW Status. The following categories of persons are not necessarily excluded from POW
status simply because they belong to one of these categories:
• mercenaries;57
• persons who are alleged to have committed war crimes;58
• nationals of neutral or non-belligerent States serving in the armed forces of an enemy
State;59 and
• persons whose capture has not been acknowledged by the Power to which they belong.60
9.3.3 Persons Entitled to POW Treatment. Certain persons, although not entitled to POW
status, shall likewise be treated as POWs under the GPW:
• persons belonging, or having belonged, to the armed forces of an Occupied State if it is
deemed necessary to intern them;61 and
• persons belonging to one of the categories enumerated in Article 4 of the GPW who have
been received by neutral or non-belligerent Powers on their territory and whom these
Powers are required to intern under international law.62
9.3.4 Fallen Into the Power of the Enemy.
9.3.4.1 Having Fallen. Persons must have “fallen” into the power of the enemy to
receive POW status.63
54 Refer to § 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).
55 Refer to § 4.4.4 (Nationality and Combatant Status).
56 Refer to § 4.5.2.6 (Defectors).
57 Refer to § 4.21 (Mercenaries).
58 Refer to § 9.26.4 (Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts).
59 Refer to § 4.4.4.1 (Nationals of Neutral States in Enemy Forces).
60 For example, 2004 UK MANUAL ¶8.3 footnote 20 (“During the Gulf conflict 1991, the Iraqi action in declaring
that captured aircrew would only be treated as prisoners of war (PW) if the coalition forces admitted that they had
been captured was a clear breach of GC III, Art 4.”).
61 Refer to § 4.5.4 (Persons Belonging, or Having Belonged, to the Armed Forces of an Occupied State).
62 Refer to § 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).
63 Compare § 10.3.2.1 (“Find Themselves”).
519
The person need not have been captured to have “fallen” into the power of the enemy; it
may be the case that he or she became a prisoner without fighting, e.g., by surrendering.64
Although defectors serving with their new armed force may be viewed as being in “the
power of the enemy,” they are not regarded as “hav[ing] fallen into” that condition, since they
have voluntarily chosen to switch sides.65 Thus, defectors are not considered by their new armed
forces to be entitled to POW status.66
9.3.4.2 Into the Power. A person is considered to have fallen into the power of
the enemy when that person has been captured by, or surrendered to, members of the military
forces, the civilian police, or local civilian defense organizations or other enemy civilians who
have taken that person into custody.67 The person need not be captured by the armed forces of
the opposing State.
9.3.4.3 Of the Enemy. Persons who have been captured by States that are not
adversaries in the armed conflict are not technically in the hands of the enemy.68 However,
persons who are entitled to POW status or treatment and are interned by a neutral State under its
duties under international law are generally entitled to POW treatment, as a minimum, under
Article 4B(2) of the GPW.69 Similarly, for example, military forces engaged in peace operations
who are detained by the forces of a State that is a party to a conflict should, at a minimum, be
afforded POW treatment by analogy.
9.3.5 Treatment and Determination of POW Status in Case of Doubt. Should any doubt
arise as to whether persons, having committed a belligerent act and having fallen into the hands
of the enemy, belong to any of the categories enumerated in Article 4 of the GPW, such persons
64 GPW COMMENTARY 50 (“The words ‘fallen into the power of the enemy’ replace the word ‘captured’ which
appeared in the 1929 Convention, the first expression having a wider significance and also covering the case of
soldiers who became prisoners without fighting, for example following a surrender.”).
65 See U.N. GENERAL ASSEMBLY, Report of the Secretary-General: Respect for Human Rights in Armed Conflicts,
U.N. Doc. A/7720 ¶88 (Nov. 20, 1969) (“One of the requirements of the acquisition of prisoner of war status is that
the persons concerned must ‘have fallen into the power of the enemy.’ The view has been expressed that persons
who defect from their own forces and give themselves up to the enemy and therefore do not have prisoner of war
status, are not subject to the provisions of Geneva Convention III and are therefore neither entitled to the rights nor
bound by the obligations of prisoners of war.”); 1958 UK MANUAL ¶126 note 1 (“Defectors are not considered to
have ‘fallen’ into the power of the enemy within the meaning of Art. 4A. … The term ‘fallen’ clearly shows that it
concerns combatants who pass into enemy hands, not of their own free will but by a force beyond their control
because they are under its restraint,’”).
66 Refer to § 4.5.2.6 (Defectors).
67 1956 FM 27-10 (Change No. 1 1976) ¶84b (“A person is considered to have fallen into the power of the enemy
when he has been captured by, or surrendered to members of the military forces, the civilian police, or local civilian
defense organizations or enemy civilians who have taken him into custody.”).
68 See GPW COMMENTARY 50 (“The existence of a state of belligerence is no longer officially in question; the term
‘enemy’ covers any adversary during an ‘armed conflict which may arise between two or more of the High
Contracting Parties’ pursuant to the first paragraph of Article 2.”).
69 Refer to § 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).
520
shall enjoy the protection of the GPW until such time as their status has been determined by a
competent tribunal.70
9.3.6 Commencement and Duration of POW Status and Treatment. The GPW applies to
persons referred to in Article 4 of the GPW from the time they fall into the power of the enemy
until their final release and repatriation.71
9.3.7 Non-Renunciation of Rights Secured by the GPW. POWs may in no circumstances
renounce, in part or in entirety, the rights secured to them by the GPW, or by special agreements,
if any, that are referred to in Article 6 of the GPW.72 A similar provision of the GC applies to
protected persons, and similar provisions of the GWS and GWS-Sea apply to the wounded, sick,
shipwrecked, and military medical and religious personnel.73
This rule is intended to prevent States from evading their obligations by coercing enemy
nationals in their power to waive their rights. The prohibition on the non-renunciation of rights
is based on a recognition that: (1) POWs are in a vulnerable position; (2) it would be difficult to
establish whether a POW had voluntarily renounced his or her rights; and (3) an absolute
prohibition would best serve the interests of the majority of POWs.74
The non-renunciation of rights, in particular, prevents a POW from being compelled to
serve in the armed forces of the Detaining Power.75 The non-renunciation of POW rights,
however, applies only to those who have fallen into the power of the enemy, and thus would not
prevent persons from defecting to the enemy’s side before capture.76
The non-renunciation of rights by the GPW does not prohibit States from affording
POWs the right to refuse repatriation at the conclusion of the conflict.77
70 Refer to § 4.27.2 (POW Protections for Certain Persons Until Status Has Been Determined); § 4.27.3 (Competent
Tribunal to Assess Entitlement to POW Status or Treatment).
71 GPW art. 5 (“The present Convention shall apply to the persons referred to in Article 4 from the time they fall into
the power of the enemy and until their final release and repatriation.”).
72 GPW art. 7 (“Prisoners of war may in no circumstances renounce in part or in entirety the rights secured to them
by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.”).
Refer to § 9.1.2.2 (Special Agreements Under the GPW).
73 Refer to § 10.3.6 (Non-Renunciation of Rights Secured by the GC); § 7.2.2 (Non-Renunciation of Rights Secured
by the GWS or GWS-Sea).
74 See GPW COMMENTARY 89 (“In the end, however, the Diplomatic Conference unanimously adopted the absolute
prohibition mainly because it is difficult, if not impossible, to prove the existence of duress or pressure [against a
POW for him or her to renounce rights]. … [The Diplomatic Conference] adopted the rule because it seemed to
safeguard the interests of the majority. … The Conference also accepted the view that in war-time prisoners in the
hands of the enemy are not really in a sufficiently independent and objective state of mind to realize fully the
implications of a renunciation of their rights.”). See also LEVIE, POWS 91 (“Obviously, prisoners of war can never
negotiate on a basis of equality with the Detaining Power.”).
75 Refer to § 9.19.2.3 (Labor Assignments That May Be Compelled).
76 Refer to § 4.5.2.6 (Defectors).
77 Refer to § 9.37.4.2 (POWs Who Resist Repatriation).
521
9.4 NATIONAL-LEVEL GPW IMPLEMENTATION MEASURES
The GPW requires a number of measures at the national level to facilitate protection for
POWs.
9.4.1 Appointment or Establishment of Entities. The GPW provides for certain bodies or
entities to be appointed or established.
9.4.1.1 Appointment of a Protecting Power. The GPW contemplates that a
Protecting Power will have been appointed to assist in the implementation of the GPW.78 A
Protecting Power has a variety of roles under the GPW related to the protection of POWs.79
9.4.1.2 Establishment of a National POW Information Bureau. A National POW
Information Bureau shall be established by each of the Powers concerned.80
9.4.1.3 Establishment of a Central POW Information Agency. A Central POW
Information Agency shall be established in a neutral country by the Power concerned jointly.81
9.4.1.4 Appointment of Mixed Medical Commissions. Mixed Medical
Commissions shall be appointed to examine sick and wounded POWs and to make all
appropriate decisions regarding them.82
9.4.1.5 Graves Registration Service. A Graves Registration Service shall be
established by each of the Powers concerned.83
9.4.2 Notification of Certain Laws or Policies Between Belligerents. Parties to a conflict
must notify opposing belligerents or the Protecting Power of certain matters relating to POWs.
9.4.2.1 Notification of Parole Policy. Upon the outbreak of hostilities, each party
to a conflict shall notify the adverse party or parties of its laws or regulations allowing or
forbidding its armed forces to accept parole.84 U.S. policy has prohibited the acceptance of
parole.85
78 Refer to § 18.15.1.1 (Protecting Power Under the 1949 Geneva Conventions).
79 Refer to § 9.32 (Role of the Protecting Power in the GPW).
80 Refer to § 9.31.2 (National POW Information Bureau).
81 Refer to § 9.31.3 (Central POW Information Agency).
82 Refer to § 9.36.5 (Mixed Medical Commissions).
83 Refer to § 9.34.4 (Maintenance and Records of Graves and Ashes).
84 Refer to § 9.11.2 (Parole of POWs).
85 Refer to § 9.39.1.3 (Code of Conduct - Article III).
522
9.4.2.2 Notification of Offenses Punishable by Death. Information on what
offenses are punishable by death should be communicated to the Protecting Power and the
POWs.86
9.4.2.3 Location and Marking of POW Camps. The Detaining Power should
provide the Powers concerned useful information regarding the geographic location of POW
camps, and agreements on their markings may be reached.87
9.4.2.4 Requirements for the Validity of Wills. Information on the requirements
for the validity of wills should be communicated to the opposing party so that POWs in enemy
custody may prepare valid wills.88
9.4.2.5 Communication or Agreement Between the Powers Concerned on Ranks.
Titles and ranks of persons entitled to POW status or treatment shall be communicated to one
another by the parties to the conflict.89 Ranks of persons entitled to retained personnel status or
treatment should also be communicated and agreed upon so that the senior medical officer in a
POW Camp may be determined.90
9.4.2.6 Arrangements Made for POWs to Write Correspondence and Receive
Collective Relief. Immediately upon POWs falling into its power, the Detaining Power shall
inform them and the Powers on which they depend, through the Protecting Power, of the
measures taken to carry out the provisions of the Section V of the GPW, which relates to POW
correspondence and relief shipments.91 The Detaining Power shall likewise inform the parties
concerned of any subsequent modifications of such measures.92
9.4.3 Issue of Identification Cards to Persons Liable to Become POWs. Parties to the
GPW must provide persons under their jurisdiction who are liable to become POWs with identity
cards.93 This card must show:
• the owner’s surname (i.e., last name), first names (i.e., first and middle names);
• rank, army, regimental, personal or serial number or equivalent information; and
86 Refer to § 9.28.6 (Death Sentences).
87 Refer to § 9.11.4.2 (Sharing Information on the Location of POW Camps); § 9.11.4.3 (Marking of POW Camps).
88 Refer to § 9.21.2.1 (Preparation of Wills).
89 Refer to § 9.22.4.1 (Communication of Titles and Ranks).
90 Refer to § 7.9.5.7 (Senior Medical Officer in the Camp).
91 GPW art. 69 (“Immediately upon prisoners of war falling into its power, the Detaining Power shall inform them
and the Powers on which they depend, through the Protecting Power, of the measures taken to carry out the
provisions of the present Section.”).
92 GPW art. 69 (“They shall likewise inform the parties concerned of any subsequent modifications of such
measures.”).
93 GPW art. 17 (“Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to
become prisoners of war, with an identity card showing the owner’s surname, first names, rank, army, regimental,
personal or serial number or equivalent information, and date of birth.”).
523
• date of birth.
In accordance with this requirement, DoD practice has been to issue all members of the
U.S. armed forces identification cards that indicate their status under the Geneva Conventions.94
An individual’s loss of the identification card issued by a State Party is not a basis for
denial of POW status.95
9.5 HUMANE TREATMENT AND BASIC PROTECTIONS FOR POWS
POWs must at all times be humanely treated.96 POWs are entitled in all circumstances to
respect for their persons and their honor.97 Likewise, POWs must at all times be protected,
particularly against acts of violence or intimidation and against insults and public curiosity.98
Any unlawful act or omission by the Detaining Power causing death or seriously
endangering the health of a POW in its custody is prohibited, and will be regarded as a serious
breach of the GPW.99
9.5.1 Respect for Their Persons and Honor. POWs are entitled in all circumstances to
respect for their persons and their honor.100 For example, the rape or other indecent assault of
POWs is forbidden.101
9.5.2 Protection Against Acts of Violence or Intimidation. POWs must at all times be
protected, particularly against acts of violence or intimidation.102 For example, the murder of
POWs is forbidden.103
94 For example, DOD INSTRUCTION 1000.01, Identification (ID) Cards Required by the Geneva Conventions (Apr.
16, 2012); DOD INSTRUCTION 1000.1, Identity Cards Required by the Geneva Convention (Jan. 30, 1974).
95 Refer to § 4.27.1 (Identification Cards Used to Help Clarify Status).
96 GPW art. 13 (“Prisoners of war must at all times be humanely treated.”); HAGUE IV REG. art. 4 (“[Prisoners of
war] must be humanely treated.”).
97 GPW art. 14 (“Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”).
98 GPW art. 13 (“Likewise, prisoners of war must at all times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity.”).
99 GPW art. 13 (“Any unlawful act or omission by the Detaining Power causing death or seriously endangering the
health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present
Convention.”).
100 GPW art. 14 (“Prisoners of war are entitled in all circumstances to respect for their persons and their honour.”).
101 Compare § 8.2.2.1 (Protection Against Rape, Enforced Prostitution, and Other Indecent Assault); § 10.5.1.2
(Protection for Women Against Rape or Other Indecent Assault).
102 GPW art. 13 (“Likewise, prisoners of war must at all times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity.”).
103 For example, Trial of the Rear-Admiral Nisuke Masuda and Four Others of the Imperial Japanese Navy (The
Jaluit Atoll Case), I U.N. LAW REPORTS 71, 72 (U.S. Military Commission, U.S. Naval Air Base, Kwajalein Island,
Kwajalein Atoll, Marshall Islands, Dec. 7-13, 1945) (“The charge against the five accused, as approved by the
Convening Authority, was one of murder. The specification stated that they ‘did, on or about 10th March, 1944, on
524
9.5.2.1 Prohibition on Killing of POWs. A commander of a force may not put
enemy prisoners to death because their presence retards the force’s movements or diminishes the
force’s power of resistance by necessitating a large guard, or by reason of the prisoners
consuming supplies, or because it appears certain that they will regain their liberty through the
impending success of enemy forces. It is likewise unlawful for a commander to kill enemy
prisoners in the force’s custody on grounds of self-preservation, even in the case of airborne or
commando operations, although the circumstances of the operation may make necessary rigorous
supervision of and restraint upon the movement of POWs.104
Older sources that permitted commanders in dire circumstances to deny quarter do not
reflect the current law.105
9.5.2.2 Protection Against Violence by the Civilian Population or Others. POWs
must be protected against violence by the civilian population.106 POWs should be protected not
only against unlawful acts by the agents of the Detaining Power, but also against violence from
other POWs.107
the Island of Aineman, Jaluit Atoll, Marshall Islands, at a time when a state of war existed between the United States
of America and the Japanese Empire, wilfully, feloniously, with malice aforethought without justifiable cause, and
without trial or other due process, assault and kill, by shooting and stabbing to death, three American fliers, then and
there attached to the Armed forces of the United States of America, and then and there captured and unarmed
prisoners of war in the custody of the said accused, all in violation of the dignity of the United States of America,
the International rules of warfare and the moral standards of civilised society.’”).
104 1956 FM 27-10 (Change No. 1 1976) ¶85 (“A commander may not put his prisoners to death because their
presence retards his movements or diminishes his power of resistance by necessitating a large guard, or by reason of
their consuming supplies, or because it appears that they will regain their liberty through the impending success of
their forces. It is likewise unlawful for a commander to kill his prisoners on the grounds of self-preservation, even
in the case of airborne or commando operations, although the circumstances of the operation may make necessary
rigorous supervision of and restraint upon the movement of prisoners of war.”); 1958 UK MANUAL ¶137 (“A
commander may not put his prisoners of war to death because their presence retards his movements or diminishes
his power of resistance by necessitating a large guard, or by reason of their consuming supplies, or because it
appears that they will regain their liberty through the impending success of the forces to which they belong. It is
unlawful for a commander to kill prisoners of war on grounds of self-preservation. This principle admits of no
exception, even in the case of airborne or so-called commando operations—although the circumstances of the
operation may make necessary rigorous supervision of and restraint upon their movement.”).
105 See, e.g., LIEBER CODE art. 65 (“[A] commander is permitted to direct his troops to give no quarter, in great
straits, when his own salvation makes it impossible to cumber himself with prisoners.”).
106 See, e.g., Trial of Erich Heyer and Six Others (The Essen Lynch Case), I U.N. LAW REPORTS 88, 89 (British
Military Court for the Trial of War Criminals, Essen, Dec. 18-19 and 21-22, 1945) (“[P]risoners of war were
marched through one of the main streets of Essen, the crowd around grew bigger, started hitting them and throwing
sticks and stones at them. An unknown German corporal actually fired a revolver at one of the airmen and wounded
him in the head. When they reached the bridge, the airmen were eventually thrown over the parapet of the bridge;
one of the airmen was killed by the fall; the others were not dead when they landed, but were killed by shots from
the bridge and by members of the crowd who beat and kicked them to death.”); United States, et al. v. Göring, et al.,
Judgment, I TRIAL OF THE MAJOR WAR CRIMINALS BEFORE THE IMT 229 (“When Allied airmen were forced to land
in Germany, they were sometimes killed at once by the civilian population. The Police were instructed not to
interfere with these killings, and the Ministry of Justice was informed that no one should be prosecuted for taking
part in them.”).
107 GPW COMMENTARY 143 (“Respect for physical integrity generally means that it is prohibited to kill, wound or
even endanger prisoners of war. As we have seen above, Article 13 defines this obligation in a positive manner by
525
9.5.2.3 No Exposure to a Combat Zone or Use as a Human Shield. No POW may
at any time be sent to or detained in areas where he or she may be exposed to the fire of the
combat zone, nor may his or her presence be used to render certain points or areas immune from
military operations.108
9.5.2.4 No Physical Mutilation or Medical, Scientific, or Biological Experiments.
In particular, no POW may be subjected to physical mutilation or to medical or scientific
experiments of any kind that are not justified by the medical, dental, or hospital treatment of the
POW concerned and carried out in his or her interest.109 The GWS and GWS-Sea also prohibit
biological experiments on the wounded, sick, and shipwrecked.110
This prohibition was established in the 1949 Geneva Conventions in order to prohibit
expressly criminal practices that occurred during World War II and to prevent the wounded, sick,
or shipwrecked in captivity from being used as “guinea pigs” for medical experiments.111
The prohibition on subjecting the wounded, sick, or shipwrecked to biological
experiments does not prevent doctors from trying new treatments that are justified on medical
grounds and are employed solely for therapeutic purposes.112
specifying certain acts which constitute grave breaches. It should be emphasized that this protection must be
enforced not only in regard to the agents of the Detaining Power, but also, should the occasion arise, in regard to
fellow prisoners. Any infraction should be liable to punishment.”) (emphasis added).
108 GPW art. 23 (“No prisoner of war may at any time be sent to, or detained in areas where he may be exposed to
the fire of the combat zone, nor may his presence be used to render certain points or areas immune from military
operations.”); United States v. von Leeb, et al. (The High Command Case), XI TRIALS OF WAR CRIMINALS BEFORE
THE NMT 588 (“To use prisoners of war as a shield for the troops is contrary to international law.”). Refer to § 5.16
(Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military Operations).
109 GPW art. 13 (“In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific
experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner
concerned and carried out in his interest.”).
110 GWS art. 12 (“Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in
particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments;”).
111 See GWS COMMENTARY 139 (“It was intended, by prohibiting the subjection of wounded and sick to biological
experiments, to put an end for all time to criminal practices of which certain prisoners have been the victims, and
also to prevent wounded or sick in captivity from being used as ‘guinea-pigs’ for medical experiments.”). See, e.g.,
United States v. Karl Brandt, et. al (The Medical Case), II TRIALS OF WAR CRIMINALS BEFORE THE NMT 171, 175-
78 (“(A) High-Altitude Experiments. From about March 1942 to about August 1942 experiments were conducted at
the Dachau concentration camp, for the benefit of the German Air Force, to investigate the limits of human
endurance and existence at extremely high altitudes. The experiments were carried out in a low-pressure chamber in
which the atmospheric conditions and pressures prevailing at high altitude (up to 68,000 feet) could be duplicated.
The experimental subjects were placed in the low-pressure chamber and thereafter the simulated altitude therein was
raised. Many victims died as a result of these experiments and others suffered grave injury, torture, and ill-
treatment. … (L) Incendiary Bomb Experiments. From about November 1943 to about January 1944 experiments
were conducted at the Buchenwald concentration camp to test the effect of various pharmaceutical preparations on
phosphorus burns. These burns were inflicted on experimental subjects with phosphorus matter taken from
incendiary bombs, and caused severe pain, suffering, and serious bodily injury.”).
112 GWS COMMENTARY 139 (“But the provision refers only to ‘biological experiments’. Its effect is not to prevent
the doctors in charge of wounded and sick from trying new therapeutic methods which are justified on medical
grounds and are dictated solely by a desire to improve the patient’s condition. Doctors must be free to resort to the
526
POWs may voluntarily consent to give blood for transfusion or skin for grafting for
therapeutic purposes; such procedures should take place under conditions consistent with
generally accepted medical standards and controls designed for the benefit of both the donor and
the recipient.113
9.5.3 Protection Against Insults and Public Curiosity. POWs must at all times be
protected against insults and public curiosity.114 For example, organizing a parade of POWs
through the civilian population, thereby exposing them to assault, ridicule, and insults, would be
prohibited.115 Displaying POWs in a humiliating fashion on television or on the internet would
also be prohibited.116 For this reason and others, DoD policy has prohibited the taking of
photographs of detainees except for authorized purposes.117
new remedies which science offers, provided always that such remedies have first been satisfactorily proved to be
innocuous and that they are administered for purely therapeutic purposes.”).
113 Consider AP I art. 11 (“3. Exceptions to the prohibition in paragraph 2 (c) [against removal of tissue or organs
for transplantation except where these acts are justified] may be made only in the case of donations of blood for
transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement,
and then only for therapeutic purposes, under conditions consistent with generally accepted medical standards and
controls designed for the benefit of both the donor and the recipient.”).
114 GPW art. 13 (“Likewise, prisoners of war must at all times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity.”).
115 See, e.g., Trial of Lieutenant General Kurt Maelzer, XI U.N. LAW REPORTS 53 (U.S. Military Commission,
Florence, Italy, Sept. 9-14, 1946) (“Some time in January, 1944, Field Marshal Kesselring, commander-in-chief of
the German forces in Italy, ordered the accused who was commander of Rome garrison to hold a parade of several
hundreds of British and American prisoners of war in the streets of the Italian capital. This parade, emulating the
tradition of the triumphal marches of ancient Rome, was to be staged to bolster the morale of the Italian population
in view of the recent allied landings, not very far from the capital. The accused ordered the parade which took place
on 2nd February, 1944. 200 American prisoners of war were marched from the Coliseum, through the main streets
of Rome under armed German escort
A film was made of the parade and a great number of photographs taken
which appeared in the Italian press under the caption ‘Anglo Americans enter Rome after all ... flanked by German
bayonettes.’”) (ellipses in original); United States, et al. v. Araki, et al., Majority Judgment, International Military
Tribunal for the Far East, 49,708, reprinted in NEIL BOISTER & ROBERT CRYER, DOCUMENTS ON THE TOKYO
INTERNATIONAL MILITARY TRIBUNAL: CHARTER, INDICTMENT AND JUDGMENTS 574 (2008) (“About 1,000
prisoners captured in the fighting in Malaya arrived in Korea and were marched through the streets of Seoul, Fusan,
and Jinsen where they were paraded before 120,000 Koreans and 57,000 Japanese. These prisoners had previously
been subjected to malnutrition, ill-treatment and neglect so that their physical condition would elicit contempt from
those who saw them.”); STUART I. ROCHESTER & FREDERICK KILEY, HONOR BOUND: THE HISTORY OF AMERICAN
PRISONERS OF WAR IN SOUTHEAST ASIA, 1961-1973 196 (1998) (“[H]oping to win increased support from Hanoi’s
patrons, [the North Vietnamese] deliberately marched the group [of POWs] past the Soviet and Chinese embassies
to impress officials there with the numbers of PWs the DRV held. As the column turned onto the main avenue, the
prisoners were met by larger and noisier crowds, in some places massed 10 deep (John McKamey estimated as many
as a hundred thousand altogether). Cued by a chanting [Northern Vietnamese POW interrogator-indoctrinator] and
incited by blaring loudspeakers and marshals with bullhorns, the throng erupted into a frenzy as the PWs filed past.
The hostile galleries cursed the prisoners, hurled bricks and bottles, and pressed close enough to pummel them with
outstretched arms while guards grabbed the men by the hair or used rifle butts to force them to lower their heads.
Scores of spectators broke through the makeshift barriers, darting in between the Americans—kicking, screaming,
spitting, striking the defenseless men with clenched fists as they stumbled along dazed and now frightened.”).
116 WILLIAM M. HAMMOND, THE UNITED STATES ARMY IN VIETNAM: PUBLIC AFFAIRS, THE MILITARY AND THE
MEDIA, 1962-1968, 272 (1990) (“Hanoi itself diverted public attention in the United States by releasing photographs
527
9.5.4
Reprisals Prohibited. Measures of reprisal against POWs are prohibited.118
9.5.5 No Adverse Distinction Based on Race, Nationality, Religion, or Political Belief.
Taking into consideration the provisions of the GPW relating to rank and sex, and subject to any
privileged treatment that may be accorded to them by reason of their state of health, age, or
professional qualifications, all POWs shall be treated alike by the Detaining Power, without any
adverse distinction based on race, nationality, religious belief, or political opinions, or any other
distinction founded on similar criteria.119
Distinction based on nationality, political opinion, or other similar criteria may be made
so long as it is not adverse and it is made to advance legitimate interests, such as maintaining
order in the camp.120
In some cases, the Detaining Power must make distinctions between POWs as to rank or
age,121 state of health,122 or professional status,123 as well as to provide specific protection for
women.
9.5.6 Due Regard for Women POWs. Women POWs shall be treated with all the regard
due to their sex and shall in all cases benefit from treatment as favorable as that granted to
men.124 This principle also applies under the GWS and GWS-Sea to women who are wounded,
sick, and shipwrecked.125
The GPW provides specifically for separate dormitories for women POWs in camps with
both men and women and for separate bathroom facilities for women POWs.126 The GPW also
showing an angry mob of North Vietnamese jeering a parade of captured American pilots-a blatant violation of the
1949 Geneva Conventions which prohibited the exposure of prisoners of war to public curiosity and abuse.”).
117 Refer to § 8.2.2.3 (DoD Practice of Generally Prohibiting Taking Photographs Without Authorization).
118 Refer to § 18.18.3.2 (Reprisals Prohibited by the 1949 Geneva Conventions).
119 GPW art. 16 (“Taking into consideration the provisions of the present Convention relating to rank and sex, and
subject to any privileged treatment which may be accorded to them by reason of their state of health, age or
professional qualifications, all prisoners of war shall be treated alike by the Detaining Power, without any adverse
distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on
similar criteria.”).
120 Refer to § 9.12.1 (Assembling According to Nationality, Language, and Customs).
121 Refer to § 9.22.4 (Rank and Age of POWs); § 9.19.1.2 (Labor Assignment - Officers and Persons of Equivalent
Status).
122 Refer to § 9.14.2.1 (Persons Requiring Special Treatment); § 9.36.1 (Direct Repatriation of Seriously Wounded,
Injured, or Sick POWs).
123 Refer to § 4.5.2.2 (Members Trained as Medical Personnel, but Not Attached to the Medical Service); § 4.5.2.3
(Members Who Are Ministers of Religion Without Having Officiated as Chaplains to Their Own Forces).
124 GPW art. 14 (“Women shall be treated with all the regard due to their sex and shall in all cases benefit by
treatment as favourable as that granted to men.”).
125 Refer to § 7.5.1 (Humane Treatment of the Wounded, Sick, and Shipwrecked Without Adverse Distinction).
126 Refer to § 9.11.6.1 (Separate Dormitories for Women); § 9.11.5.2 (Sanitary Conveniences (e.g., latrines,
bathrooms)).
528
provides for women POWs undergoing disciplinary punishment or serving a sentence to be
confined in separate quarters under the supervision of women.127 Although the GPW does not
specifically provide for this, female POWs should be under the immediate supervision of
women.128
9.6 SECURITY MEASURES WITH RESPECT TO POWS
Although POWs must always be treated humanely, the confinement and mode of treating
a POW may be varied during captivity for security purposes.129 For example, POWs and their
property may be searched and secured, when operationally necessary (e.g., immediately upon
capture).130
9.6.1 Search of POWs. POWs may be searched for security reasons, intelligence
purposes, and other administrative reasons. For example, POWs may be searched for concealed
weapons, items of intelligence value, or contraband, such as cameras and cell phones.131
The dignity and honor of the POW being searched should be protected to the greatest
degree possible under the circumstances.132 The person conducting the search should avoid
doing anything unnecessary or saying anything likely to be regarded as indecent or inappropriate.
In some circumstances, it may be appropriate for a witness to observe the search so as to protect
127 Refer to § 9.27.6.1 (Premises Where Disciplinary Punishments Are to Be Served); § 9.28.7.2 (Confinement of
Women POWs Who Have Been Sentenced).
128 Refer to § 8.7.1 (Gender and Family Segregation).
129 LIEBER CODE art. 75 (“Prisoners of war are subject to confinement and imprisonment such as may be deemed
necessary on account of safety, but they are to be subjected to no other intentional suffering or indignity. The
confinement and mode of treating a prisoner may be varied during his captivity according to the demands of
safety.”). See also GPW COMMENTARY 140 (“The requirement of humane treatment and the prohibition of certain
acts inconsistent with it are general and absolute in character. They are valid at all times, and apply, for example, to
cases where repressive measures are legitimately imposed on a protected person, since the dictates of humanity must
be respected even if measures of security or repression are being applied.”).
130 See Trial of Erich Weiss and Wilhelm Mundo, Relevance of the Plea of Self-Defence in War Crime Trials, XIII
U.N. LAW REPORTS 149, 150 (U.S. General Military Government Court, Ludwigsburg, Germany, Nov. 9-10, 1945)
(“In the light of the foregoing the rules contained in Articles 2 and 3 of the Geneva Convention, 1929, would appear
to be subject to the principle that, given faithful observation of these provisions by the detaining authorities, the
latter are generally entitled to use the force reasonably necessary to secure the custody of the prisoners or to protect
themselves from an attack by the prisoners.”).
131 For example, 1997 MULTI-SERVICE DETENTION REGULATION § 2-1.a.(1) (“The commanding officer of the
capturing unit will ensure that: … (a) Each EPW/RP will be searched immediately after capture. … Weapons,
ammunition, and equipment or documents with intelligence value will be confiscated and turned over to the nearest
intelligence unit. Propaganda and other Psychological Operations (PSYOP) materials will be confiscated, identified
by the EPW/RP name and ISN and turned over to the supporting EPW/CI PSYOP unit through intelligence
channels.”); Office of the Provost Marshal General, World War II - A Brief History 492-93 (1946) (“Each prisoner
was searched and disarmed immediately upon capture and contraband articles were taken from him, including all
equipment issued to him by his government, except clothing. He was permitted to retain his helmet and gas mask in
combat zones. Contraband included cameras, binoculars, signalling devices, compasses, and such other articles as
might be useful to him in an escape. All military papers, documents, maps, and diaries were retained for intelligence
examination.”).
132 Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).
529
both the person being searched from abuse and the person conducting the search from unfounded
accusations of abuse.
It is appropriate for female POWs to be searched by female personnel of the Detaining
Power, if possible.133 This practice helps reduce the risk of accusations of indecent behavior.
9.6.2 Securing POWs With Handcuffs and Other Security Devices. When necessary for
security reasons (e.g., to prevent escape or destruction of documents), POWs may be secured
temporarily with handcuffs, flex cuffs, blindfolds, or other security devices.134
9.6.3 Search of POW Property. Items in the possession of POWs may be removed and
searched for security and intelligence purposes, but certain items of personal or sentimental value
must be returned as soon as possible.135
9.7 POW EFFECTS AND ARTICLES OF PERSONAL USE
9.7.1 POW Effects and Articles of Personal Use. All effects and articles of personal use,
except arms, horses, military equipment, and military documents, shall remain in the possession
of POWs, likewise their metal helmets and gas masks and like articles issued for personal
protection.136 Effects and articles used for their clothing or feeding shall likewise remain in their
possession, even if such effects and articles are part of their regulation military equipment.137
These rules do not prohibit the search of POW effects and articles of personal use.138
Items that may otherwise be legitimately impounded (e.g., articles of value being
withdrawn for reasons of security) are not precluded from being impounded because they may be
characterized as an effect or article of personal use or an effect or article used for clothing or
feeding.139
133 For example, 1997 MULTI-SERVICE DETENTION REGULATION § 2-1.a.(1) (“The commanding officer of the
capturing unit will ensure that: … (a) Each EPW/RP will be searched immediately after capture. Use males to
search males and females to search female prisoners, when possible.”).
134 See Winston Churchill, Prime Minster, United Kingdom, Oral Answers to Questions, Oct. 13, 1942, HANSARD,
383 HOUSE OF COMMONS DEBATES § 1500 (“His Majesty’s Government have never countenanced any general order
for the tying up of prisoners on the field of battle. Such a process, however, may be necessary from time to time
under stress of circumstances, and may indeed be in the best interest of the safety of the prisoners themselves.”).
135 Refer to § 9.7.3 (Badges, Decorations, and Articles Having Above All a Personal or Sentimental Value).
136 GPW art. 18 (“All effects and articles of personal use, except arms, horses, military equipment and military
documents, shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and like
articles issued for personal protection.”).
137 GPW art. 18 (“Effects and articles used for their clothing or feeding shall likewise remain in their possession,
even if such effects and articles belong to their regulation military equipment.”).
138 Refer to § 9.6.3 (Search of POW Property).
139 Refer to § 9.7.4 (Money and Articles of Value).
530
9.7.2
Identity Documents. At no time should POWs be without identity documents.140
The Detaining Power shall supply such documents to POWs who possess none.141
Identity documents may be seized when necessary (e.g., intelligence purposes), provided
that the Detaining Power supplies a replacement identity document.142
9.7.3 Badges, Decorations, and Articles Having Above All a Personal or Sentimental
Value. Badges of rank and nationality, decorations, and articles having “above all” a personal or
sentimental value may not be taken from POWs.143 Such items might include a ring, wristwatch,
personal correspondence, or family photographs.
This rule does not prohibit the search of items, including a search in order to determine
whether the items in question have above all a personal or sentimental value.144
Items that may otherwise be legitimately impounded (e.g., articles of value being
withdrawn for reasons of security) are not precluded from being impounded because of their
personal or sentimental value to the POW.145
9.7.4 Money and Articles of Value. Sums of money carried by POWs may not be taken
away from them except by order of an officer, and after the amount and particulars of the owner
have been recorded in a special register and an itemized receipt has been given, legibly inscribed
with the name, rank, and unit of the person issuing this receipt.146
Sums in the currency of the Detaining Power, or that are changed into such currency at
the POW’s request, shall be placed to the credit of the POW’s account as provided for in Article
64 of the GPW.147
140 GPW art. 18 (“At no time should prisoners of war be without identity documents.”).
141 GPW art. 18 (“The Detaining Power shall supply such documents to prisoners of war who possess none.”).
142 GPW COMMENTARY 168 (“It is obvious, however, that no Detaining Power would undertake not to seize the
individual service records of combatants immediately following capture, since valuable information might be
contained therein. The Convention does not, therefore, restrict the right of the Detaining Power to seize military
documents; in this respect it departs from the 1929 text but also stipulates that at no time should prisoners of war be
without identity documents. As we have already seen in connection with Article 17, the Detaining Power must
therefore supply an identity document in place of any individual service record which it impounds.”).
143 GPW art. 18 (“Badges of rank and nationality, decorations and articles having above all a personal or sentimental
value may not be taken from prisoners of war.”).
144 Refer to § 9.6.3 (Search of POW Property).
145 Refer to § 9.7.4 (Money and Articles of Value).
146 GPW art. 18 (“Sums of money carried by prisoners of war may not be taken away from them except by order of
an officer, and after the amount and particulars of the owner have been recorded in a special register and an itemized
receipt has been given, legibly inscribed with the name, rank and unit of the person issuing the said receipt.”).
147 GPW art. 18 (“Sums in the currency of the Detaining Power, or which are changed into such currency at the
prisoner’s request, shall be placed to the credit of the prisoner’s account as provided in Article 64.”). Refer to
§ 9.18.6.1 (Cash in POW Hands Taken at the Time of Capture); § 9.18.6 (POW Accounts).
531
The Detaining Power may withdraw articles of value from POWs only for reasons of
security; when such articles are withdrawn, the procedure laid down for sums of money
impounded shall apply.148 For example, an article of value may be impounded for reasons of
security, even if it constitutes an article of personal use or an article having above all a personal
or sentimental value.149
Such objects, likewise sums taken away in any currency other than that of the Detaining
Power and the conversion of which has not been asked for by the owners, shall be kept in the
custody of the Detaining Power and shall be returned in their initial shape to POWs at the end of
their captivity.150
9.7.4.1 Unexplained Possession of Large Sums of Money by POWs. The
unexplained possession by a POW of a large sum of money justifiably leads to the inference that
such funds are not his or her own property and are in fact either property of the enemy
government or property that has been looted or otherwise stolen.151
9.7.5 No Bartering With POWs for Personal Effects. It is not proper for members of the
forces of the Detaining Power to engage in bartering and other transactions with POWs
concerning their personal effects.152
9.7.6 Accountability for Impounded Personal Effects. In addition to the specific
requirements for seized money or articles of value, it is a best practice for other items taken from
POWs to be itemized and separated (packaged) with the name, unit, service number of the POW,
and other identifying information to permit accountability, safekeeping, and return when
appropriate to the POW.
9.8 INTERROGATION OF POWS
The law of war does not prohibit interrogation of POWs, but specifies conditions and
limitations for conducting interrogation.
148 GPW art. 18 (“The Detaining Power may withdraw articles of value from prisoners of war only for reasons of
security; when such articles are withdrawn, the procedure laid down for sums of money impounded shall apply.”).
149 LEVIE, POWS 113 (“[A] prisoner of war might have an antique pocket watch with a compass in the stem. Even
though such a watch falls within the category of ‘articles of personal use’ [Article 18, first paragraph] or of ‘articles
having above all a personal or sentimental value’ [Article 18, third paragraph], which prisoners of war may normally
retain, no Detaining Power could be censured for taking the watch and placing it in safekeeping until the owner is
repatriated.”).
150 GPW art. 18 (“Such objects, likewise sums taken away in any currency other than that of the Detaining Power
and the conversion of which has not been asked for by the owners, shall be kept in the custody of the Detaining
Power and shall be returned in their initial shape to prisoners of war at the end of their captivity.”).
151 1956 FM 27-10 (Change No. 1 1976) ¶94c (“The unexplained possession by a prisoner of war of a large sum of
money justifiably leads to the inference that such funds are not his own property and are in fact either property of the
enemy government or property which has been looted or otherwise stolen.”).
152 1956 FM 27-10 (Change No. 1 1976) ¶94b (“It is not proper for members of the forces of the Detaining Power to
engage in bartering and other transactions with prisoners of war concerning their personal effects.”).
532
9.8.1 Humane Treatment During Interrogation. Interrogation must be carried out in a
manner consistent with the requirements for humane treatment, including the prohibition against
acts of violence or intimidation, and insults.153
No physical or mental torture, nor any other form of coercion, may be inflicted on POWs
to secure from them information of any kind whatever.154 POWs who refuse to answer may not
be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.155
Prohibited means include imposing inhumane conditions,156 denial of medical treatment, or the
use of mind-altering chemicals.157
9.8.2 Language of Interrogation. The questioning of POWs shall be carried out in a
language that they understand.158
9.8.3 Additional U.S. Law and Policy on Interrogation. U.S. law and policy impose
additional requirements on the interrogation of POWs.159
9.8.4 Accountability Information That POWs Are Bound to Provide Upon Questioning.
Every POW, when questioned on the subject, is bound to give only his or her surname, first
names and rank, date of birth, and army, regimental, personal or serial number, or, failing this,
equivalent information.160 If POWs willfully infringe this rule, they may render themselves
liable to a restriction of the privileges accorded to their rank or status.161 However, POWs who
153 Refer to § 9.5 (Humane Treatment and Basic Protections for POWs).
154 GPW art. 17 (“No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of
war to secure from them information of any kind whatever.”).
155 GPW art. 17 (“Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant
or disadvantageous treatment of any kind.”).
156 Trial of Erich Killinger and Four Others (The Dulag Luft Case), III U.N. Law REPORTS 67 (British Military
Court, Wuppertal, Nov. 26-Dec. 3, 1945) (“The function of Dulag Luft was, shortly, to obtain information of an
operational and vital nature from the captured crews of Allied machines. The allegation was that excessive heating
of the prisoners cells took place at Dulag Luft between the dates laid in the charge for the deliberate purpose of
obtaining from prisoners of war information of a kind which under the Geneva Convention they were not bound to
give, and that the accused were concerned in that ill-treatment. The Prosecution also alleged a ‘lack of and refusal
of required medical attention’ and ‘in some cases, blows.’ ... Killinger, Junge and Eberhardt were found guilty and
sentenced to imprisonment for five, five and three years respectively. The remaining two accused were found not
guilty.”).
157 U.S. Army, Office of The Judge Advocate General, JAGW 1961/1157, Memo re: Use of “Truth Serum” in
Questioning Prisoners of War, Jun. 21, 1961, LEVIE, DOCUMENTS ON POWS 708, 709 (“3. In view of the foregoing,
it is the opinion of this division that the suggested use of a chemical ‘truth serum’ during the questioning of
prisoners of war would be in violation of the obligations of the United States under the Geneva Convention Relative
to the Treatment of Prisoners of War.”).
158 GPW art. 17 (“The questioning of prisoners of war shall be carried out in a language which they understand.”).
159 Refer to, e.g., § 8.4.2 (Additional U.S. Law and Policy on Interrogation).
160 GPW art. 17 (“Every prisoner of war, when questioned on the subject, is bound to give only his surname, first
names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent
information.”).
161 GPW art. 17 (“If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges
accorded to his rank or status.”).
533
|
||
|
|
|