Who Is a Prisoner of War
Chapter 44 of The Geneva Conventions of 1949: A Commmentary (Clapham et al., eds, Oxford: Oxford University Press, 2015)
37 Pages Posted: 6 Jul 2016 Last revised: 10 Jul 2016
Date Written: April 30, 2015
This paper examines the qualification provisions for prisoner of war (POW) status under the Third Geneva Convention of 1949 (GC III). It argues that Article 4 of GC III should be understood merely to identify groups whose members are entitled to POW status and the conditions for other groups whose members are entitled to POW status. Article 4 should not be understood to identify general requirements for individual belligerent conduct, or for armies and armed groups generally. Nor, strictly speaking, does it constitute a code of conduct or enumeration of criminal offenses. By de-coupling POW status determinations from combatant immunity and other individual pre-capture conduct, the interpretive approach advocated by this paper ensures broad and principled application of the GC III protective regime by States.
Keywords: Law of War, International Humanitarian Law, Law of Armed Conflict, Geneva Conventions, Prisoner of War, Public International Law
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