Chapter One: General Introduction

1.1 Background to the Study

The legal protection of prisoners of war (POWs) is a longstanding concern that has evolved significantly over centuries, reflecting the changing norms of warfare and humanitarian principles. The genesis of formalized legal protection for POWs can be traced back to various historical documents and agreements, although the modern framework primarily draws from the developments of the 20th century. Before the 20th century, the treatment of POWs was largely dictated by the whims of the captors, with few established norms or laws governing their treatment. However, the horrors of World War I and subsequent conflicts highlighted the need for a more structured and humane approach to the treatment of individuals captured during armed conflicts. The League of Nations, established post World War I, attempted to address some of these issues, but it was the atrocities of World War II that provided the impetus for a more comprehensive and binding set of international agreements governing the treatment of POWs.

In the 20th century, as articulated by Morrow, a legalized system for the treatment of prisoners of war (POW) emerged.[1] This system was developed to enhance the treatment of POWs, ensuring they are shielded from abuse, human rights violations, and in most circumstances, death. The formalization of this protection significantly encouraged states and their military forces to desist from abuse and murder of soldiers and combatants who either surrendered or were captured, leading to their captivity. Remarkably, this formalized protection and treatment of POWs is orchestrated by international humanitarian law (IHL), a substantive dimension of international law. IHL lays down fundamental rules regulating armed conflict, ensuring that warring parties or states do not have the liberty to select the means and methods of warfare employed in conflicts. The protection of POWs transcends shielding them from physical torture, humiliation, detention, or harassment upon capture or surrender; it also encompasses ensuring that their basic needs are met. Hence, POWs are entitled to the basic political and civil rights enjoyed by global citizens. Their liberty and personal dignity are upheld, and they are shielded from inhuman, degrading, and cruel punishment or treatment. The international humanitarian law governing the treatment of POWs is constructed to safeguard nearly every facet of warfare, aiming to mitigate, as much as possible, the negative impacts of captivity[2]. As highlighted by the International Military Tribunal at Nuremberg[3], war captivity is neither an act of revenge nor punishment, but purely protective custody aimed at barring POWs from further engagement in the war. The Tribunal emphasized that it’s against military tradition to kill or injure helpless individuals. From the Tribunal’s judgement, several notable points are underscored:

1. Captivity is neither revenge nor punishment.
2. Captivity serves as protective custody.
3. The objective of captivity is to deter the captive from further involvement in war.
4. Military tradition vehemently opposes killing or injuring defenceless individuals.

In the aftermath of World War II, the international community came together to draft the Geneva Conventions, which were adopted in 1949. The Third Geneva Convention specifically addresses the treatment of POWs, setting forth a detailed set of rules to ensure their humane treatment, including provisions on housing, food, medical care, and the establishment of a neutral body to oversee the treatment of POWs​[4]​. The Convention significantly expanded the legal protections available to POWs, setting a new standard for their treatment during armed conflict. It also established the International Committee of the Red Cross (ICRC) as a neutral intermediary to ensure adherence to these standards. The Geneva Conventions have been further supplemented by Additional Protocols adopted in 1977, which expanded the protections afforded to POWs and other individuals affected by armed conflict. Protocol I, for instance, extends the protections of the Geneva Conventions to individuals involved in international armed conflicts, while Protocol II addresses non-international armed conflicts​[5]​. Further advancements in international humanitarian law have continued to refine and expand the protections available to POWs, with various international and regional treaties, as well as customary international law, contributing to the current legal framework. In recent years, the emergence of non-state armed groups and the changing nature of warfare have posed new challenges to the application and enforcement of international humanitarian law concerning POWs. Despite the established legal framework, violations continue to occur, underlining the need for ongoing efforts to ensure the effective implementation and enforcement of these critical humanitarian standards. The evolution of the legal framework governing the treatment of POWs reflects the broader evolution of international humanitarian law and the ongoing effort to ensure the humane treatment of individuals affected by armed conflict. The Geneva Conventions and their Additional Protocols form the cornerstone of this framework, representing the collective commitment of the international community to uphold humanitarian principles even during armed conflict.​

1.2 STATEMENT OF THE PROBLEM

Despite the established legal framework, there have been instances where the rights of POWs were infringed, leading to human rights violations. The effectiveness of the existing laws and the enforcement mechanisms in ensuring the protection of POWs necessitates a comprehensive study to identify any gaps and propose solutions.

1.3 RESEARCH QUESTIONS

Main Research Question

• How effective is the current International Humanitarian Law framework in protecting the rights and welfare of prisoners of war?

Specific Research Questions

• What are the key provisions under IHL for the protection of POWs?
• How are these provisions enforced and what are the challenges faced in enforcement?
• What are the implications of non-compliance by states and non-state actors?

1.4 RESEARCH OBJECTIVES

1.4.1 Main Research Objectives

• To evaluate the effectiveness of the current IHL framework in protecting POWs.

1.4.2 Specific Research Objectives

• To outline the key legal provisions under IHL for POWs.
• To analyze the enforcement mechanisms and identify challenges.
• To assess the implications of non-compliance and propose recommendations for enhancing the protection of POWs.