National Implementation of IHL
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Oie Hee Koi case, Judicial Committee of the Privy Council (UK), 4 December 1967
Judicial Committee of the Privy Council (U.K.)
Public Prosecutor v. Oie Hee Koi and connected appeals, Judicial Committee of the Privy Council (U.K.),
4 December 1967 [1968] , A.C. 829.

In the context of the confrontation between Malaysia and Indonesia, twelve paratroopers under the command of Indonesian officers were captured in Malaysia, convicted of offences relating to firearms, ammunition and explosives under section 57 and 58 of the Internal Security Act of 1960 and sentenced to death. The accused were allegedly "Chinese Malays" either born or settled in Malaysia. Although their nationality was not formally established, most carried identity cards normally issued to Malaysian citizens. On appeal, most of the convictions were upheld, except for two cases, in both of which the Federal Court considered that the accused were prisoners of war within the meaning of Malaysia's Geneva Conventions Act of 1962, and as such entitled to the protection of the Third Geneva Convention. The Prosecutor appealed against this ruling and the other ten accused appealed against the finding by the Federal Court that they were not entitled to prisoner of war status.

After noting that the Geneva Conventions Act did not indicate whether the status of prisoner of war covered nationals of, or persons owing allegiance to, the captor state, the Judicial Committee found that close examination of the Third Geneva Convention and commonly accepted international law strongly indicated that a prisoner of war was not a national of the detaining power. It therefore concluded that the Convention did not extend the protection of prisoners of war to nationals of the detaining power or to persons who, though not nationals, owed allegiance to that power. Further, as none of the accused except one claimed protection under the Convention, the Committee held that there was nothing to show that the accused were prisoners of war or cast "doubt" on their status. The fact that they landed as part of the Indonesian armed forces was not sufficient to raise any such doubt. It was for the accused, and not for the prosecution, to raise any such "doubt" before or at the trial. Accordingly, this basis for appeal was dismissed.

With regard to the application of the Malaysian Internal Security Act (1960) to regular members of the Indonesian army, the majority held that, as part of domestic law, the Act was not directed at the military forces of a hostile power attacking Malaysia. Members of such forces were not subject to domestic criminal law.

Like Osman Bin Mohamed Ali v. Public Prosecutor (1968) , this case demonstrates that a member of the armed forces who is not entitled to prisoner-of-war status under the Third Geneva Convention may be prosecuted under national law for offences against that law. There was no evidence that the appellants had carried out any warlike activity. Upon capture they were in possession of a firearm, ammunition and explosives. The main issue in this case was whether a person either born or settled in Malaysia, serving in the armed forces of a State (Indonesia) engaged in an armed conflict with Malaysia and captured by Malaysian armed forces, was entitled to be treated as a prisoner of war. The answer was in the negative. The point is not directly dealt with in the Third Geneva Convention, although it is assumed that a prisoner of war will not be of the same nationality as the detaining State (see Articles 87 and 100 ). This view may be questioned today in the light of Additional Protocol I, which contains a broader definition of prisoner of war (Article 44(1) ) and covers certain types of armed conflict (i.e. those mentioned in Article 1(4) ) in which prisoners of war could be nationals of the detaining Power.

The operation of Article 5 of Geneva Convention III in this case is also open to question. The Convention's protection may be accorded to an individual accused of offenses against national law without the accused needing to assert a claim to prisoner-of-war status provided that he appears to be entitled to such status. Article 45(1) of Additional Protocol I helps to clarify this point, although it was not in force at the time of the above-mentioned decision.

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