Prisoners of War. (GPW, art. 4, HR, art. 23c, d.)
Surrender may be made by any means that communicates the intent to give up. No clear-cut rule as to what
constitutes a surrender. However, most agree surrender constitutes a cessation of resistance and placement of one's self at
the discretion of the captor. The onus is on the person or force surrendering to communicate intent to surrender. Captors
must respect (not attack) and protect (care for) those who surrender--no reprisals. GP I art. 44 expands the definition of
prisoners of war to include any combatant "who falls into the power of an adverse Party" Combatants include those who
do not distinguish themselves from the civilian population except when carrying arms openly during an engagement and
in the deployment immediately preceding the engagement; e.g., national liberation movements. (GP I, art. 44.) U.S.
asserts this definition does not reflect customary international law. Captured civilians accompanying the force also
receive PW status (GPW, art. 4(a)(4)).
Identification and Status. The initial combat phase will likely result in the capture of a wide array of
1
individuals. The U.S. applies a broad interpretation to the term "international armed conflict" set forth in common
Article 2 of the Conventions. Furthermore, DoD Directive 5100.77, the DoD Law of War Program, states that U.S.
Forces will comply with the LOW regardless of how the conflict is characterized. Judge advocates, therefore, should
advise commanders that, regardless of the nature of the conflict, all enemy personnel should initially be accorded the
protections of the GPW Convention (GPW), at least until their status may be determined. In that regard, recall that
"status" is a legal term, while "treatment" is descriptive. When drafting or reviewing guidance to soldiers, ensure that the
guidance mandates treatment, not status. For example, a TACSOP should state that persons who have fallen into the
power of U.S. Forces will be "treated as PW," not that such persons "will have the status of PW." When doubt exists as
to whether captured enemy personnel warrant continued PW status, Art. 5 (GPW) Tribunals must be convened. It is
important that judge advocates be prepared for such tribunals. During the Vietnam conflict, a Directive established
2
procedures for the conduct of Art. 5 Tribunals; however, no comparable Directive is presently in effect.
Treatment. There is a legal obligation to provide adequate food, facilities, and medical aid to all PWs. This
obligation poses significant logistical problems in fast-moving tactical situations; thus, judge advocates must be aware of
3
how to meet this obligation while placing a minimum burden on operational assets. PWs must be protected from
physical and mental harm. They must be transported from the combat zone as quickly as circumstances permit. Subject
to valid security reasons, PWs must be allowed to retain possession of their personal property, protective gear, valuables,
and money. These items must not be taken unless properly receipted for and recorded as required by the GPW. In no
event can a PW's rank insignia or identification cards be taken. These protections continue through all stages of captivity,
including interrogation.
Detainees. Particularly in Military Operations Other Than War, where there are no lawful enemy combatants
(e.g., Somalia, Haiti, Bosnia, as discussed above), persons who commit hostile acts against U.S. forces or serious criminal
1
For example, in two days of fighting in Grenada, Army forces captured approximately 450 Cubans and 500 hostile Grenadians. Panama provided
large numbers of detainees, both civilian and "PDF" (Panamanian Defense Force/police force) for the Army to sort out. The surrender of almost
overwhelming numbers of Iraqi forces in the Gulf War was well publicized.
2
No Article 5 Tribunals were conducted in Grenada or Panama, as all captured enemy personnel were repatriated as soon as possible. In the Gulf War,
Operation DESERT STORM netted a large number of persons thought to be EPWs, who were actually displaced civilians. Subsequent interrogations
determined that they had taken no hostile action against Coalition Forces. In some cases, they had surrendered to Coalition Forces to receive food and
water. Tribunals were conducted to verify the status of the detainees. Upon determination that they were civilians who had taken no part in hostilities,
they were transferred to detainment camps. Whether the tribunals were necessary as a matter of law is open to debate -- the civilians had not
"committed a belligerent act," nor was their status "in doubt."
3
The following examples are illustrative. When U.S. Forces landed in Grenada, they did not possess the food necessary to feed the large number of
PWs and detainees who would come under our control. Thus, we used captured foodstuffs to feed them. Similar situations occurred in Panama. Thus,
by using captured food, the U.S. met its obligation under the GPW, and the ground commanders were able to conserve valuable assets. Initially, PW
facilities on Grenada, in Panama, and in the Gulf were each inadequate in their own ways. They consisted of dilapidated buildings, with no sanitation
facilities or electricity, or were simply non-existent (in the desert). The ground commanders could not afford to use critically needed combat personnel
(the personnel necessary to handle PWs were not initially available) to construct PW camps. Because the LOW does not require combatants to use their
own assets to construct PW camps, the U.S. used captured property and PWs to construct adequate camps. (In fact, in Grenada the PWs were Cuban
construction workers.). Medical assets also tend to be in high demand and short supply during combat. The LOW, however, prohibits the willful denial
of needed medical assistance to PWs, and priority of treatment must be based on medical reasons. While the Capturing Party has the obligation to
ensure adequate medical care for enemy wounded, the GWS Convention encourages the use of "retained persons" to treat enemy wounded. The U.S.
has made use of this provision as well. As these examples indicate, the JA must be familiar with and apply the LOW in a practical manner. In doing so,
he enables the commander to comply with legal requirements, without jeopardizing the mission.
Chapter 2
18
Law of War
Previous Page
