PoW

PoW and the Geneva Convention: The law in practice

PoW are provided for under the Geneva Convention (1929) which was signed at Geneva in Switzerland on 27thJuly 1929. The provisions of the Convention saw fruition on African soil. Recently, Uganda’s president Yoweri Museveni officiated a formal release of prisoners of war (PoW) from South Sudan, creating a resettlement program for the former combatants.

Formally referred to as the Convention relative to the Treatment of POWs, the treaty that was enforced in 1931 followed the then fragile state of PoW during World War II. The Convention also touches on persons that are no longer active in war. They include the sick, the maimed/incapacitated and the civilians. International Law calls them ‘hors de combat’, incapable of fighting.

Four Conventions summed up the Geneva Convention on armed forces on land and sea, PoW and civilians. These conventions, one may argue, regulate war!

Most of South Sudan is, sadly, at war and yes, several hors de combat face sanctions, should governments refuse to categorise them as PoW.  Like in any conflict, civilians with little or no military experience are forced to arm themselves and join the conflict. Unfortunately, once they are subdued, imprisoned and faulted, some jurisdictions try them as active combatants, few noticing that peculiar circumstances draw civilians into military action.

PoW possess skills, usually military skills that lie dormant due to their physical incapacity. This situation alone is suspicious and makes it difficult for any state, sometimes their own, to release them into the civilian population. However, the Geneva Convention disputes this claim by imposing conditions on governments holding or welcoming back PoW.

The Convention:

Article 1 defines ‘lawful combatants’ whom international law qualifies to be PoW on capture during a conflict.

The Convention (Articles 2, 3 and 4) provides that they are prisoners of a state or group holding them. This state must accord them humane treatment, specifically women who have to be treated with regard to their gender. The special treatment to women comes with natural dispositions the gender has, although some may argue that once women assume military roles, they are equal to their male counterparts lest they lose command among peers.

Capturing a POW

‘Sergeant Peter Omona, KDF, No. 12345’.

Upon capture, although some may surrender, PoW are expected to give their captors personal information on their identity, background, rank, etc.

The Convention dictates that captors must not deprive PoW personal items, other than arms and horse; and must ‘request’ and not coerce the PoW to identify themselves. That is moot. At war, it is difficult for many belligerents to honor this rule even if it could have as well been them, had they been the PoW.

According to Articles 7 and 8, PoW must be kept away from ‘combat’ zones where active military action is present.

International law principles are odd. While they advocate for safe havens for PoW, they forget that a continuing war is no waltz. Capturing forces take advantage of their catch to exploit as much information from their captives as they can. They use them as human shields, subject them to psychological and emotional difficulty, eventually breaking their will.

The right to life

Food, clothing, medical attention, good sanitary conditions, religious facilities, etc, the law says must be provided. However, that is the reader’s to imagine.

The right to life, which embodies all fair and equal treatment of all humans, governs the fundamental obligation of the Geneva Convention. It prohibits any abuse to PoW.

This law considers that a war exists because two or more parties disagree and simply orders that a fight must be fair on all sides. One may argue that PoW are treated better than the victims of the wars they cause or fight. For example, if court grants permission to a PoW to return to his family after confirming he is terminally ill with cancer, the Convention will have acted selfishly. To some, the court’s humanitarian gesture proves its assumed fairness since the captive is ‘terminally ill’ without chance to revive his health and commit the same act. To others, especially to the victims and their families who did not have the opportunity to bid their loved ones farewell do not welcome his release.

Conclusion

When President Museveni presided the handover of 125 Sudanese PoW previously captured and held by the South Sudan (former fighters in South Kordofan and Blue-Nile states)  to Sudan, he not only resurrected the importance of observing international law but also the role third party states play in settling military aftermaths. The treatment of PoW stood throughout the ceremony. Military personnel that the law considers inactive or incapable of fighting have been regarded as delicate.

Where hostile relations escalate to violence, the application of a fair war can be a myth. The Convention, in many ways, is like a referee on how to fight, waiting for the end (if at all) to apportion blame to the one who did not play according to the rules. The law is not a peacemaker.  Wars are bound to happen, given conflicting ideologies.

BY ATUHAIRWE AGRACE

This article appears in our digital law magazine, The Deuteronomy Vol 3, Issue 2 of March 10th  2017

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