61 Pages Posted: 16 Jun 2004
What is the significance of prisoner-of-war status? Drawing on the substance, universal acceptance, broad-based institutionalization, and enforcement machinery of the Geneva Convention for the Protection of Prisoners of War, conventional wisdom maintains that denial of POW status to combatants has drastic protective (and policy) consequences. Contrary to this conventional wisdom, this Article argues that denial of POW status carries few protective or policy consequences and that the gap in protection is closing. The only persistent gaps are that: (1) POWs are assimilated into the legal regime governing the armed forces of the detaining state; and (2) POWs enjoy combatant immunity. The scope and significance of these gaps are, however, also diminishing - from both a protection and policy perspective. I also argue that this emerging protective parity has important implications for humanitarian law and policy: (1) it clarifies and consolidates debates about coverage gaps in the Geneva law; (2) it recasts debates about the proper procedure for determining status in humanitarian law (procedurally, POW status might be understood only as an affirmative defense to any prosecution for simple participation in hostilities); and (3) it underscores the escalating inefficiencies of approaches that calibrate treatment based on complex status determinations (and, in doing so, provides an explanation of why some states - including the U.S. - expressly incorporate elements of protective parity into their military policy). Finally, I offer a preliminary normative defense of protective parity - emphasizing whether it can be reconciled with the principle of distinction.
Keywords: International law
Suggested Citation: Suggested Citation
Jinks, Derek, The Declining Significance of POW Status. Harvard International Law, Vol. 45, 2004. Available at SSRN: https://ssrn.com/abstract=528125