NKUMBA UNIVERSITY

SCHOOL OF LAW AND INSTITUTE OF CRIMNAL

JUSTICE

PRISSONERS OF WAR, MERCINARIES, SPIES AND

PROTECTION OF CIVILIAN POPULAIONS

GROUP 3

NAMES

1 KIWUKA EVALYN

2 LUBEGA JONATHAN

3 MARUNGA CHRISTINE

4 MUHINDO MOGHAN

5 MUGISHA NUWAGABA

6 NUWAGABA MERCY RACHAEL

7 KOMUJUNI WISKATE
Prisoners of war

Prisoners of war cannot be discussed without identifying other persons in an armed conflict who
may end up in the enemy of an enemy,

In short... [there is] a general principle which is embodied in all four Geneva Conventions of 1949.
Every person in enemy hands must have some status under international law: he is either a
prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth
Convention, or again, a member of the medical personnel of the armed forces who is covered by
the First Convention. There is no intermediate status; nobody in enemy hands can be outside the
law.1

Combatant is a member of an armed force that is a party to an armed conflict2, those don’t include
medical personnel and chaplains specified under Article 333

Combatants fall into two categories: members of the armed forces of a party to a conflict (other
than medical and religious personnel), and any others who take a direct part in hostilities.4 The
defining distinction of the lawful combatant’s status is that upon capture he or she is entitled
to the protections of a Prisoner of War, “one of the most valuable rights of combatants under
the Law of War.”5 “Entitlement to the status of a prisoner of war – on being captured by the
enemy – is vouchsafed to every combatant, subject to the conditio sine qua non that he is a lawful
combatant.”6

Under the Protocol, the key elements are that combatants have a right to participate directly in
hostilities and are entitled to prisoner-of-war status on capture; even violations of the law of war

1
Jean Pictet, ed., Commentary, IV Geneva Convention (Geneva: ICRC, 1958), 51
2
Article 43.2 of the Additional protocol 1 of Geneva convention

3
Article 43(2) P1, and Article 33 of Ad P2
4
Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (New York: Cambridge
University Press, 2004), 27
5
Col. G.I.A.D. Draper, “Personnel and Issues of Status,” in Michael A. Meyer and Hilaire McCoubrey, eds.,
Reflections on Law and Armed Conflicts (The Hague: Kluwer Law International, 1998), 194, 197
6
Dinstein, The Conduct of Hostilities, supra, note2, at29
do not deprive them of their status.7It is implicit in this that combatants may not be punished for
their acts of belligerency carried out in accordance with the law of war. The Protocol’s approach
to civilians is that they are protected from attack and entitled to general protection against the
dangers of military operations ‘unless and for such time as they take a direct part in hostilities’

There no longer are statuses of “quasi-combatant”8 or “semi-civilian.”9 The status of combatant is

not conduct-based;10 while assigned as an army cook (conduct) you remain a combatant (status)
authorized to fight. “[A] combatant is a person who fights...[T]he combatant is a person who is
authorized by international law to fight in accordance with international law applicable in
international armed conflict.”11 The consideration of combatant status occupies much of law of
Armed conflict study because in traditional war fare combatants are the most numerous battlefield
players, with an entire Geneva Convention devoted to their treatment upon capture.

“Combatants may be attacked at any time until they surrender or are otherwise hors de combat,
and not only when actually threatening the enemy.”12 A combatant remains a combatant when
he/she is not actually fighting. When a soldier is bivouacked and sleeping she remains a combatant
and so remains a legitimate target. While sleeping, she may be lawfully killed by an opposing
lawful combatant. If a combatant is targeted far behind the frontlines, no matter how unlikely such
targeting may be, she continues to be a legitimate target for opposing lawful combatants. Taken
an unrealistic step further, if a combatant is home on leave and in uniform, far from the combat
zone, and is somehow targeted by an opposing combatant, she remains a legitimate target and may
be killed – just as the opposing combatant, if discovered outside the combat zone, may be killed
by his enemy. That illustrates the downside of combatancy : A lawful combatant enjoys the
combatant’s privilege, but also is a continuing lawful target.

7
Except the requirement to carry arms openly during deployments and engagements, see Additional Protocol I,
Art. 44, paras. 3 and 4. 4 Additional Protocol I, Art. 51
8
Maj. Gen. A.P.V. Rogers, Law on the Battlefield, 2d ed. (Huntington, NY: Juris, 2004), 9
9
Sandoz, Commentary on the Additional Protocols, supra, note5, at515
10
e.g., Charles H.B. Garraway, “‘Combatants’ – Substance or Semantics?” in Michael N. Schmitt and Jelena Pejic,
eds., International Law and Armed Conflict: Exploring the Faultlines (Leiden: Martinus Nijhoff, 2007), 317. Status
often is conduct-based, but combatant status is not.
11
Dieter Fleck, ed., The Handbook of Humanitarian Law in Armed Conflicts (Oxford: Oxford University Press,
1995), para. 301, at67
12
Marco Sass`oli and Laura M. Olson, “TheRelationshipBetweenInternationalHumanitarianandHuman
RightsLawWhereitMatters:AdmissibleKillingandInternmentofFightersinNon-internationalArmed Conflicts,” 871 Int’l
Rev. of the Red Cross (Sept. 2008), 599, 605–6.
Common Article2 combatants are not combatants forever, however. They “can withdraw from
hostilities not only by retiring [or demobilizing] and turning into civilians, but also by becoming
hors de combat [i.e., out of the fight]. This can happen either by choice through a lying down of
arms and surrendering, or by force of circumstance as a result of getting wounded, sick or
shipwrecked. A combatant who is hors de combat and falls into the hands of the enemy is in
principle entitled to the privileges of a prisoner of war.”13

A prisoner of war is any combatant who falls in the powers of an adverse party. According to
Article 414 prisoners of war are persons belonging to one or among other, members of the
armed force of a party to the conflict as well as members of militia or volunteer corps forming
part of such an armed force as referred to in article 4(1),(2),(3),(4),(5),(6)b1,2,) who fall in the
hands of the enemy. A combatant is obliged to comply with the rules of international, a Prisoner
of war’s status and treatment are commonly discussed in the context of the principle of distinction
and the combatant requirements. There is a conceptual relation between these two terms in that
one has to qualify as a combatant to be entitled to prisoners of war status upon capture 15 Enemy
soldiers, who surrender or are hors de combat, no longer pose a threat to the captors, as they are
unable to fight effectively16 The convention under Article 5 shall apply to the persons named under
article 4 from the time they fall into the power of the enemy and until their final release.

In a common Article 2 international conflict, captured combatants are entitled to POW status, with
its Geneva Convention III rights and protections. As Lieber points out, “A prisoner of war is
subject to no punishment...nor is any revenge wreaked upon him by the intentional infliction of
any suffering, or disgrace, by cruel imprisonment...death, or any other barbarity....Prisoners of war
are subject to confinement or imprisonment such as may be deemed necessary on account of safety,
but they are to be subjected to no other intentional suffering or indignity.”17

13
Dinstein, Conduct of Hostilities, supra, note2, at28
14
The Gneva Conventions of 12th August 1949
15
Elizabeth Wilsh and Susan Breau, Perspective on the ICRC Study on customary International Law
16
ibid
17
Instructions for the Government of Armies of the United States in the Field (April 24, 1863), Arts. 56, 75.
Hereafter: the Lieber Code.
Prisoners of war are confined only to keep them from returning to further fighting. Captured
fighters who are not entitled to prisoners of war status, such as unlawful combatants (unprivileged
belligerents), do not enjoy the same consideration or treatment.

Treatment of prisoners of war

Prisoners of war must all times be treated humanely, any unlawful act or omission by the detaining
power causing death or serious endangering the health of a prisoner of war in its custody is
prohibited and will be regarded as serious breach of the Geneva convention, the POW of war in
particular shall not be subjected to physical mutilation or medical or scientific experiments of any
kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned.
By extension, prisoners of war must all times be protected from acts of violence or
intimidation and against insults and public curiosity. Prisoners are entitled to respect for their
persons and their honour, women on the other hand shall be treated with all regard to their sex and
shall in all cases benefit by treat as favorable as that granted to men.

It must be noted that, prisoners of retain a civil capacity which they enjoyed at the time of
their capture, the detaining power may not restrict the exercise either within or without its
own territory, of the rights such capacity confers except in so far as the captivity requires. Under
Article 15, the Detaining Power is bound to provide free of charge for their maintenance and for
the medical attention required by their state of health.

Equality

All prisoners have a right to be treated equally, however considering provisions of the convention,
relating to rank, sex and subject to any privilege treatment which may be accorded to them by
reason of their status of Health, age or professional qualifications special treatment may be
accorded to certain cluster of prisoners of war. At the beginning of captivity, every prisoner is
bound to give only his surname, first name and rank, date of birth and army, regimental, personal
or serial numbers any equivalent, in an instance the POW infringes this rule ,he may render himself
liable to restriction of the privileges accorded to his rank or status. No physical or mental torture
nor any other form of coercion, may be inflicted on prisoner of war who refuses to answer may
not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind.
In a case a prisoner is unable to state their identity due to physical or mental conditions, such are
supposed to be handed over to the medical service. The questioning of POW is supposed to be
carried out in the language which they understand

Property of the POW

Article 18, all effects and articles of personal use except arms, horses, military equipment of war
are supposed to remain with the prisoner just like their helmets gas masks and any articles issued
for personal protection. Effects used for clothing, feeding shall remain with the POW, money may
as well not be taken away, the detaining power may only withdraw any articles of value from the
prisoners mainly for reasons of security

Evacuation

Prisoners of war are entitled to be evacuated in a humane manner and in conditions similar to those
for the force of the detaining power in their change of station and the detaining power has an
obligation of supplying them with sufficient food and water and necessary clothing and medical
attention and take all suitable precautions to ensure their safe evacuation.

Security of the POW

No prisoner 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, they are entitled to have shelters against air bombardment and other hazards
of war, to the same extent the local civilian population.

Hygiene

All detaining powers under article 29 are bound to take all sanitary measures necessary to ensure
the cleanliness and healthfulness of camps and to prevent epidemics, specifically women are
supposed to be provided discrete conveniences from men. Prisoners are entitled to showers with
sufficient water and soap.

Medical attention
It is a mandate for every camp to have an adequate infirmary where prisoners of war may have
attention they require as well as appropriate diet; insolation ward may as well be set aside from
cases of contagious or mental disease

Religion

POW have a right to enjoy and exercise their religious duties including attending service of their
faith on a condition that they comply with the disciplinary routine prescribed by the military
authorities.

What about common Article 3 non-international armed conflicts? The traditional view is that, just
as there are no POWs in non-international armed conflicts, there are no “combatants,” lawful or
otherwise, in common Article 3 conflicts. There may be combat in the literal sense, but in terms
of law of armed conflict there are fighters, rebels, insurgents, or guerrillas who engage in armed
conflict, and there are government forces, and perhaps armed forces allied to the government
forces. There are no combatants as that term is used in customary law of war, however. Upon
capture such fighters are simply prisoners of the detaining government; they are criminals to be
prosecuted for their unlawful acts, either by a military court or under the domestic law of the
capturing state

SPIES

Treaties and Other Instruments Treaties 142. Article 29 of the 1899 HR provides that: An
individual can only be considered a spy if, acting clandestinely, or on false pretenses, he obtains,
or seeks to obtain information in the zone of operations of a belligerent, with the intention of
communicating it to the hostile party.

Thus, soldiers not in disguise who have penetrated into the zone of operations of a hostile army to
obtain information are not considered spies. Similarly, the following are not considered spies:
soldiers or civilians, carrying out their mission openly, charged with the delivery of dispatches
destined either for their own army or for that of the enemy. To this class belong likewise
individuals sent in balloons to deliver dispatches, and generally to maintain communication
between the various parts of an army or a territory
Article 29 of the 1907 HR provides that:

A person can only be considered a spy when, acting clandestinely or on false pretense, he obtains
or endeavors to obtain information in the zone of operations of a belligerent, with the intention of
communicating it to the hostile party.

Article 46(2) AP I provides that:

A member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory
controlled by an adverse Party, gathers or attempts to gather information shall not be considered
as engaging in espionage if, while so acting, he is in the uniform of his armed forces.

Article 30 of the 1899 HR provides that “a spy taken in the act cannot be punished without previous
trial”. Article 31 specifies that “a spy who, after rejoining the army to which he belongs, is
subsequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility
for his previous acts of espionage.

One must agree with the general assertion that spies are not entitled to POW status as a matter of
customary international humanitarian law. Neither The Hague Regulations, which undoubtedly
embody customary law (Article 29, referring to ‘persons’) nor the provisions of Additional
Protocol I (Article 46, mentioning ‘any member of the armed forces’) refer to combatants as the
only group of persons deprived of POW status due to their engagement in espionage

Mercenaries

Until recently, there was no generally accepted definition of a “mercenary,” but the term was
usually applied to foreigners who took part in an armed conflict on one side or the other, primarily
for high pay or hope of booty...The definition of “mercenary “in[API]is so narrow that
few persons would fit within it. The United States has signed this Protocol but has not yet ratified
it The act of being a mercenary is not a crime under international law. An individual who is accused
of being a mercenary and who is captured during an armed conflict is entitled to the basic
humanitarian protections of the international law applicable in armed conflict, including those
specified in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.
The specific rights which such an individual would be entitled to vary depending on whether the
conflict is an international conflict or an internal one and, in the case of international armed
conflicts, on whether the person is entitled to prisoner-of-war status...The protections of [common]
article 3 [of the 1949 Geneva Conventions] would also apply to any captured individual accused
of being a mercenary during a civil war. [Common Article 3] does not provide any immunity from
prosecution to individuals for engaging in combatant acts. The provisions of the Geneva
Conventions. dealing with prisoners of war do not apply in civil wars, and combatants captured
during civil wars are not prisoners of war within the meaning of international law

Protection of civilian populations

Apart from a few provisions of limited scope, the Geneva conventions does not deal with the
general operation of civilian populations against the effect of hostilities. This matter came under
The Hague Conventions, most of whose rules go back to 1907 and have from that time acquired a
customary character and are still valid.

Part iv of the first Additional Protocol.

Civilian persons mean any person who does not belong to the armed forces and does not take part
in a “levee en Masse.” In case of doubt as to weather is a civilian or not, that person shall be
considered as a civilian.

The civilian population comprises all persons who are civilian. The presence within the Combatant
Population of individuals other than civilian persons does not deprive the population of its civilian
character.

Journalists engaged on dangerous professional missions in arears of armed conflicts are civilian
persons. The fundamental principle on the law of armed conflicts is based is expressed as follows;

In any armed conflict, the right of the parties to the conflict to choose methods or means of warfare
is not unlimited. Two basic rules follow this principle.

The first prohibits the use of weapons, projectiles and materials and methods of war fare of a nature
to ease un necessary injury. The second, in order to ensure respect and protection for the civilian
population and civilian property, obliges the parties to the conflict to distinguish at all times
between the civilian population and combatants, as well as between civilian property and military
objectives and to direct their operations only against military objectives. Article 50(1) of the
additional protocol 1 a civilian.

Article 50(1) defines a civilian any person who does not belong to the armed forces. Article 51(3)
stipulates that all civilians shall enjoy protection unless they take part in direct hostilities.

However, they are still entitled to a minimum standard of protection as laid down in article 75 in
case they participate in hostilities which makes them lose their status.

Article 13 of the Geneva convention which grants general protection to the whole population
without any adverse distinction based on a civilian state, article 4 of the same convention clearly
excludes nationals of a state that is not bound by this convention and a national of a neutral state
who find themselves in the hands of the belligerent state.

Although this distinction only applies in international armed conflicts since non international
armed conflicts makes no distinction between civilians and they are equally protected. The
rationale behind this exclusion in article 4 of the Geneva convention IV is the assumption that
those civilians enjoy benefits of their domestic law.

Special categories of civilians protected.

1.Nationals of the adverse party.

This are the civilians of the opposing state and after finding the situation unbearable under war,
they may request to leave as under article 35 of the Geneva convention IV, however if the departure
is contrary to the national interests of the state, their request may be refused for instance if they
are old enough to be recruited in Army of the adverse party.

2. refugees and stateless persons.

A refugee Is a person who due to external aggression is forced to leave his country to another
origin, these are considered, unreliable and shall be deemed to be protected as under article 73.

Rights of protected persons.

Respect for life, human treatment, dignity, family and prohibition against collective punishments
as enshrined in part III of the Geneva convention IV. Article 27 of civilians in times of war
contains articles for the safe guard of civilians. It goes on to provide the general safe guards for
protected persons. Their honor, family rights, religious convictions and customs should be
respected. They should be humanely treated and protected against violence, threats, insults, and
public curiosity.

Respect for private property under article 53 of the Geneva convention IV whereby destruction of
civilian’s private property is prohibited unless the property is in line with military objectives.

Prohibition of discrimination, all civilians shall be treated with the consideration by the party to
the conflict in whose power they are regardless of sex, colour as enunciated in article 27 of the
Geneva convention IV. The convention also provides for the protection of civilian population in
general, regardless of nationality, race, religion of political belief or any other similar criteria .

Internment of civilians.

Article 42 makes it obvious as a penalty for the civilians of the occupied territories who have
committed offences to internment to be ordered by the secretary of the detaining power.

However, the civilians have a right to appeal this internment and also while in internment, they
have to be accommodated well and in places away from danger.

Principles of protection.

1. Principle of proportionality. This is based on assumption that the military advantage

foreseen must not outweigh the civilian losses. It is prohibited to launch an attack for revenue loss
to civilian population for the military gain as under article 51(2) of the additional protocol 1.

2. Principle of precaution. Civilians must always be warned out of war zone as provided for
under article 57 of the additional protocol 1.

3. Principle of distinction. This is clearly stipulated under article 45 of the additional protocol
1 that is the basic rule, that emphasizes distinguishing the military objectives from the civilian
population for instance combatants must wear uniforms.
4. Principle of prohibition of indiscriminative attacks. The international committee of red
cross rule 2, prohibits attacks which are not for military objectives and also methods which are
contrary to the international humanitarian principles