Welcome to this lecture on the protection of prisoners of war, and other detainees under IHL. Thousands if not hundreds of thousands of fighters, and civilians have been deprived of their liberty in situations of armed conflict. Detention in armed conflict is actually a common and often lawful occurrence. However, isolated from their loved ones, and in the hands of the enemy, detainees have proven to be extremely vulnerable to abuse. For example, we can think back to the horrors committed in concentration camps during World War II, the rapes committed in detention camps in Bosnia Herzegovina during the Yugoslav wars and the enhanced interrogation techniques that had been used in Guantanamo Bay. For these reasons, IHL governance detention during armed conflict, and sets certain boundaries for the treatment of detainees. In situations of armed conflict detainees benefit from protection under a different set of rules depending on their legal status. Broadly speaking, IHL distinguishes between combatants who are deprived of their liberty in international armed conflicts, and benefit from prisoner of war status under the third Geneva Convention. Then civilians detained in international armed conflicts who are protected under the Fourth Geneva Convention, and persons detained in non-international armed conflict who benefit from the protection of Common Article 3, and Additional Protocol the second. This brief overview shows that there are no detainees who fall outside the scope of protection of IHL. Yet this is not always the case in practice. For example, in the aftermath of 9-11, the United States with the assistance of certain European countries detained several hundreds alleged terrorists with little to no guarantee of protection under international law. For each of the categories outlined earlier, we will now examine the legal basis for the detention, and the protections afforded by IHL. Let's begin with prisoners of war, also commonly known as POWs. As defined in Article 4 of the third Geneva Convention, Prisoners of War are combatants who have fallen into the power of the enemy. Combatants are members of the armed forces of a party to an international armed conflict with the exception of medical and religious personnel. Members of irregular armed forces are also entitled to POWs status when captured provided that they fulfill the four requirements to be assimilated to the regular arm forces, as was explained previously. Because they carry out belligerent acts, combatants are considered to pose a threat to the security of the adverse party. Thus, the enemy can lawfully deprive them of their liberty until the end of active hostilities. The internment of combatants is a non-criminal preventive measures taken by the adverse party to protect itself against security threats. This is why we speak of internment rather than detention of POWs. It is important to note that prisoners of war can be interned without any specific judicial or administrative procedure. They're not entitled to a review of the lawfulness of the internment either while hostilities are ongoing. However, POWs are nevertheless protected by IHL from the time they fall into the power of the enemy until their final release and repatriation. How does the third Geneva Convention protect POWs? First and foremost, IHL provides that prisoners of war must at all times be humanely treated. Causing death or seriously endangering the health of a POW is explicitly prohibited. Furthermore, the detaining power must protect POWs against acts of violence or intimidation, and against insult and public curiosity. Measures of reprisal against prisoners of war are also prohibited. Second, the detaining power must tend to the POWs basic needs free of charge. In other words POWs must receive adequate food, water, clothing, shelter and medical attention. They must be allowed to freely practice their religion, and to engage in educational and recreational activities. Third, IHL enables POWs to retain contact with the outside world. The detaining power must allow POWs to communicate with their family, their home state and the ICRC. Finally, IHL affords fair trial rights to detainees. These rights are relevant for POWs who are alleged to have committed a criminal offense in the course of the armed conflict, and are facing criminal charges. Let's now turn to the detention of Civilians in International Armed Conflicts. Unlike combatants, civilians do not by definition pose a threat to the security of the belligerent, because they're supposed not to participate in hostilities. However, in some cases for example in occupied territories, civilians might participate in criminal activities against the occupying power, and could be lawfully detained as a result. Moreover, under very strict circumstances, civilians maybe interned for security reasons. This is only possible if an appropriate court or administrative board determines that they pose a significant threat to the security of the belligerent party. For example, this is the case when civilians take up arms, and directly participate in hostilities, as discussed in the previous module on the conduct of hostilities. The detention of these civilians must furthermore be strictly necessary. Other less intrusive measures of control must be considered inadequate before civilians can be lawfully detained. Like POWs, civilians who are interned by the enemy during an armed conflict must receive adequate protection. They must be treated humanely, their basic needs must be provided for, they must be able to have contact with the outside world, etc. But one important difference with POWs, is that civilians are entitled to a review of their detention by a court or an administrative board. Civilians who are detained should be released as soon as possible, and in any event after the cessation of hostilities. Now, let's have a look into the detention of persons in non-international armed conflict. As we already know, the treaty law governing NAICs is much more limited than those governing AICs. One of the consequences of this is that the law of Non-International Armed Conflict does not provide an explicit legal basis for the detention. Nevertheless, the legal provisions that regulate NAICS implicitly refer to the possibility of detention. As they provide for a minimal level of protection for persons who have been deprived of their liberty. For example, think about Common Article 3 to the Geneva Conventions, and Article 4 of APII, which provides that all persons taking no active part in hostilities shall in all circumstances be treated humanely. This also includes persons who are deprived of their liberty. Article 5 APII further spells out that detainees' basic needs must be provided for, and they must be able to have contact with the outside world. Finally, both Common Article 3 and Article 6 of APII provide for judicial guarantees. Let me wrap up. In this lecture we've seen that IHL stipulates that all persons in armed conflict who are deprived of their liberty must receive a minimal level of protection, and that all detainees should be treated humanely. A key takeaway from this lecture, is that no person deprived of their liberty in the context of an armed conflict can fall outside the scope of protection of IHL.
