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Doubtful prisoner-of-war status

30-09-2002 Article, International Review of the Red Cross, No. 847, by Yasmin Naqvi

This article explores how doubt over prisoner-of-war status may arise and how issues relating to the determination of status should be resolved according to the Third Geneva Convention. In this context, a State's obligations in cases of "doubtful" status are examined, as are the minimal requirements of a "competent tribunal".

   

Yasmin Naqvi,
B.A., L.L.B.Hons (University of Tasmania), is a DES (Masters) candidate at the Graduate Institute of International Studies, Geneva. She is currently working for the International Review of the Red Cross, ICRC,Geneva. 
   
Abstract 
Prisoner of war status is crucial in terms of the legal status accorded to a captured person in the hands of a hostile power and the treatment accorded to him or her. This article explores how doubt over prisoner of war status may arise and how the determination of status should be resolved according to the rule in Article 5 of the Third Geneva Convention. Through the analysis of the legal rule and the examination of State practice, it is argued that a doubt may arise if there are serious misgivings that a detainee does not fit into the conventional definitions of a combatant or if those who do not appear to fit within the categories claim to be entitled to prisoner of war treatment. While a " competent tribunal " need not be a judicial tribunal and may not be required to guarantee the full gamut of rights accorded to an individual before a cr iminal court of law, the core due process rights recognized as customary in international humanitarian law are secured. Any attempt by States to bypass these minimum guarantees undermines both the spirit and letter of international humanitarian law and also raises the possibility of violations under human rights law governing the rights of persons in the power of an authority.  
   
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