Treaties, States Parties and Commentaries
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Commentary of 2020 
Article 13 : Humane treatment of prisoners
Text of the provision*
(1) Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.
(2) Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
(3) Measures of reprisal against prisoners of war are prohibited.
* Paragraph numbers have been added for ease of reference.
Reservations or declarations
None
Contents

A. Introduction
1562  Article 13 serves to ensure that all prisoners of war are treated humanely from the moment they fall into the power of the enemy until their final release and repatriation.[1] The obligation of humane treatment is the cornerstone of the protection conferred by the four Geneva Conventions.[2] The specific prohibitions under Article 13(1) derive from the obligation. It is further reflected in many of the provisions of the Third Convention that deal with the treatment during captivity and conditions of internment of prisoners of war.[3]
1563  As a correlative of the obligation to treat all prisoners of war humanely, Article 13(2) comprises an obligation on the Detaining Power to protect prisoners of war at all times, in particular against acts of violence or intimidation and against insults and public curiosity. This obligation involves protecting them from any physical or psychological abuse or threat thereof, and encompasses a prohibition on humiliating them, in particular by way of insults or exposure to public curiosity. Protection from public curiosity has gained particular relevance in the recent past owing to the rapid developments in communication technology and the growing involvement of mass media in the coverage of armed conflicts, together with the ubiquity of social media as a means of distributing both images and comment.
1564  Article 121 complements Article 13, by adding a procedural safeguard that requires the Detaining Power to open an official enquiry as soon as the death or serious injury of a prisoner of war is caused or suspected to have been caused by a sentry, a prisoner of war or any other person.
1565  The last paragraph of Article 13 prohibits the taking of belligerent reprisals against prisoners of war.[4] While reprisals by a Party to a conflict in response to a violation of international humanitarian law by an adversary are not unlawful as such, Article 13(3) makes clear that such measures may not be directed against prisoners of war.[5]
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B. Historical background
1566  Formal rules on humane treatment of prisoners of war can be found as early as in the 1863 Lieber Code.[6] In relation to international armed conflict, the obligation to treat prisoners of war humanely was already included in Article 4 of the 1899 Hague Regulations and reiterated in Article 4 of the 1907 Hague Regulations.
1567  The obligation was given a prominent place in the 1929 Geneva Convention on Prisoners of War, which stated in its Article 2, paragraphs 2 and 3, that prisoners of war ‘shall at all times be humanely treated and protected, particularly against acts of violence, from insults and from public curiosity’ and that ‘[m]easures of reprisals against them are forbidden’.
1568  Article 13 of the Third Convention uses much the same wording as its 1929 predecessor, with the addition of examples of unlawful acts or violations that would qualify as serious breaches of the Convention. The obligation to protect prisoners of war against acts of violence, intimidation, insults and public curiosity was further strengthened by being placed in a separate paragraph. During the Diplomatic Conference in 1949, the examples added to the fundamental principle of humane treatment in the second and third sentences of Article 13(1) were the subject of lengthy discussion. While some delegates noted that it gave a rule greater force to merely state its fundamental principle, others were concerned that the wording was not sufficiently imperative.[7]
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C. Paragraph 1: Fundamental obligations under Article 13
1. First sentence: Humane treatment of prisoners of war
1569  The first sentence of Article 13(1) requires that prisoners of war ‘at all times be humanely treated’. Humane treatment represents the baseline for the treatment of prisoners of war detained by a Party to a conflict.
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a. Humane treatment
1570  The obligation of humane treatment is expressed in few words but is nonetheless fundamental. It imposes a minimum standard, namely a duty to respect prisoners’ inherent human dignity and inviolable quality as human beings.
1571  Humane treatment of prisoners of war is not merely a recommendation or a moral appeal. The word ‘must’ leaves no doubt as to the obligatory character of this paragraph. The obligation goes beyond abstaining from inhumane treatment and may require positive action. While the social, cultural and economic environment has to be taken into account when assessing the treatment of prisoners of war by a Detaining Power, any treatment that falls below the standard of humane treatment violates the obligation.[8]
1572  The obligation of humane treatment pervades all aspects of the treatment of prisoners of war; it is relevant in a myriad of circumstances and it would be impossible and even unduly restrictive to attempt a comprehensive definition of it. It is for this reason that the Geneva Conventions and their Additional Protocols have abstained from providing such a definition.[9]
1573  In accordance with the ordinary meaning of the word ‘humane’, what is called for is treatment that is ‘compassionate or benevolent’.[10] This is more directly reflected in the French version of the text in which the obligation is formulated as requiring that persons protected under Article 13 be ‘treated with humanity’ (‘traitées avec humanité’). In addition, the type of treatment required is context-specific and dependent on a wide range of factors, including the prisoner’s cultural, social or religious background, gender and age.[11]
1574  Given that it is based on the fundamental concept of human dignity, the standard of humane treatment applies equally to all categories of protected persons in both international and non-international armed conflict.[12] Thus, practice regarding other humanitarian law provisions may serve as useful guidance on what humane treatment requires under Article 13(1) and on what kind of treatment would fall below that threshold.
1575  State practice has called for treatment that respects a person’s inherent dignity as a human being.[13] The ways States have elaborated on the obligation in their military manuals, codes of conduct and policy documents may give further indications of what humane treatment entails. These documents not only list practices incompatible with the notion of humane treatment, but also, mirroring the specific provisions on the treatment of prisoners of war in the Third Convention, provide examples of humane treatment. Such examples include treatment with all due regard to the person’s sex;[14] respect for convictions and religious practices;[15] provision of adequate food and drinking water;[16] provision of adequate clothing;[17] safeguards for health and hygiene;[18] provision of suitable medical care;[19] protection from violence and against the dangers of the armed conflict;[20] entitlement to sleep;[21] and the right to maintain appropriate contacts with the outside world.[22]
1576  Because of its broad protective dimension and to make its application to a specific situation more manageable in judicial practice, the obligation of humane treatment is sometimes depicted merely as a prohibition of ‘inhuman treatment’.[23] Hence, the obligation to treat prisoners of war humanely logically includes all prohibitions on treatment that is inhuman or degrading.
1577  The use of the wording ‘in particular’ in the third sentence of Article 13(1) indicates that the prohibitions that are listed are not exhaustive. Other forms of ill-treatment not explicitly listed in Article 13, but mentioned in Article 130, such as wilful killing and torture, are also prohibited. Reference can also be made to common Article 3, which gives expression to particular aspects of what humane treatment requires and what kinds of behaviour would clearly fall below that standard.
1578  While Article 13 does not explicitly prohibit sexual violence, it does so implicitly because it establishes an obligation of humane treatment and requires protection against violence or intimidation.[24] The term ‘sexual violence’ is used to describe any act of a sexual nature committed against any person under circumstances which are coercive.[25] Situations of detention can constitute coercive circumstances, as can fear of violence, duress, psychological oppression or abuse of power.[26] Prisoners of war can therefore be at particular risk of such coercion.[27] Women and young prisoners, including children, are at high risk of being the target of sexual violence. Practice has also shown that men in prisoner-of-war camps are also subjected to rape and other forms of sexual abuse, such as being stripped naked in public, subjected to genital violence or forced sterilization.[28]
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b. ‘at all times’
1579  The obligation laid down in Article 13(1) applies ‘at all times’. The phrase ‘at all times’ indicates that humane treatment of prisoners of war is a continuous obligation that applies for the entire period of time that the prisoners are in the power of the enemy.[29] International case law confirms that, consistent with Article 5(1), the obligation to treat prisoners of war humanely and to protect them ‘applies from the time they fall into the power of the enemy until their final release and repatriation’.[30] This obligation is especially apposite at the beginning of captivity and during questioning, when prisoners are in a particularly vulnerable position.[31]
1580  It is also argued that the phrase ‘at all times’ underlines the non-reciprocal nature of this rule,[32] meaning that even if a Party fails to respect its obligations, the adverse Party’s obligations vis-à-vis its prisoners of war remain intact.[33] This phrase has also been read as underlining the principle that military necessity may not be used as an argument against fulfilling the obligation of humane treatment.[34] Since the Second World War, it has become universally accepted that military necessity may not be invoked to override rules of humanitarian law unless specifically provided for.[35] The obligation of humane treatment in Article 13 is not subject to any explicit qualification based on military necessity. Military necessity arguments therefore do not justify acts or omissions inconsistent with the requirement of humane treatment.
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2. Second sentence: Acts or omissions against prisoners causing death or seriously endangering health
1581  The second sentence of Article 13(1) is a direct correlative of the obligation to treat prisoners of war humanely. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner is prohibited and will be regarded as a serious breach of the Convention. This prohibition covers a wide range of acts and omissions, which either cause death or seriously harm the body or health of a prisoner. It expresses the obligation to treat protected persons humanely and to respect their physical and mental integrity at all times. The term ‘health’ of prisoners covers both their physical and mental health.[36] In this regard, it is important to understand and take into account the ways in which a range of factors, including the person’s cultural, social or religious background, gender and age, shape social structures and may have differing effects on their physical and mental health and the type of treatment required. The case law of international courts and tribunals has also found that the term ‘health’ extends to mental health.[37] In situations of internment or detention, unfavourable social conditions, such as isolation or loss of family and social contacts, can severely affect a prisoner’s physical and mental health.
1582  Different types of conduct could fall under this prohibition, if they seriously endanger the physical or mental health of a prisoner. Unlike torture, such conduct need not be committed for any particular purpose. Methods of inflicting harm on prisoners of war have included: administering electric shocks; severe beatings with various objects; extended exposure to the sun; prolonged solitary confinement; psychological abuse, such as mock executions; intentional deprivation of water, food or basic sanitary facilities for long periods of time; systematic sleep deprivation; and painful methods of coercion or restraint.[38]
1583  ICRC delegates have observed that where violence and abuse in prisoner-of-war camps occurs, it is usually systemic and institutionalized and not sporadic. The abuses are mostly perpetrated by camp guards, but outsiders are sometimes allowed in by the camp authorities and engage in such acts. Furthermore, there are instances in which the perpetrators of the violence are prisoners’ representatives and/or fellow prisoners.[39]
1584  Medical officers have themselves been responsible for violating this provision by causing the death or seriously endangering the health of a prisoner through unnecessary medical procedures aimed at causing harm to the prisoner. In addition, one of the most common causes of death in prisoner-of-war camps, as observed by the ICRC, is medical negligence. Prisoners suffering from health problems caused or aggravated by captivity or ill-treatment have died owing to lack of the necessary medical attention.
1585  According to Article 13(1), any unlawful act or omission causing the death or seriously endangering the health of a prisoner of war will ‘be regarded as a serious breach of the … Convention’. The French text of the Convention refers to it as ‘une grave infraction’ (‘a grave breach’). This leaves no doubt that the drafters wanted to make it clear already in Article 13 that these prohibitions will attract individual criminal responsibility and amount to grave breaches of the Convention, falling under, for example, wilful killing, torture, inhuman treatment or wilfully causing great suffering or serious injury to body or health, as set down in Article 130.
1586  To amount to a grave breach of the Convention, the unlawful act or omission must cause death or seriously endanger the health of a prisoner of war. The requisite level of endangerment is specified as ‘serious’. An ICTY Trial Chamber has used the ordinary meaning of this word to determine that level:
The Oxford English Dictionary defines this word [‘serious’] as ‘not slight or negligible’. Similarly, the term ‘great’ is defined as ‘much above average in size, amount or intensity’. The Trial Chamber therefore views these quantitative expressions as providing for the basic requirement that a particular act of mistreatment results in a requisite level of serious suffering or injury.[40]
1587  The assessment of the seriousness of the endangerment is relative and must take into account all relevant circumstances, including the nature of the act or omission, the context in which the conduct occurred, its duration and repetition, the physical and mental effects on the victim, and the personal circumstances of the victim, including their age, gender and health.[41] International courts and tribunals have taken the view that ‘[c]ausing serious bodily or mental harm … does not necessarily mean that the harm is permanent and irremediable’,[42] but it ‘must go beyond temporary unhappiness, embarrassment or humiliation. It must be harm that results in a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life.’[43]
1588  Only unlawful acts or omissions seriously endangering the health of prisoners of war could amount to a grave breach of the Convention. However, the obligation to treat protected persons humanely prohibits any unlawful act or omission that would violate this cornerstone requirement of humanitarian law. Such unlawful act or omission could attract individual criminal responsibility and amount to a war crime other than a grave breach. Similarly, the mistreatment of prisoners could attract individual criminal responsibility under national criminal laws or codes of service discipline.
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3. Third sentence: Specifically prohibited acts
a. Physical mutilation
1589  Article 13(1) goes on to list examples of unlawful acts or omissions which either cause death or seriously endanger health. The prohibition of mutilation is a longstanding rule of humanitarian law.[44] It is included in common Article 3 and in Article 42 of the Fourth Convention and is reaffirmed in the Additional Protocols.[45] The prohibition is also part of customary international law.[46]
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i. Definition of mutilation
1590  Mutilation is not specifically defined in the Geneva Conventions or the Additional Protocols. In its ordinary meaning, to ‘mutilate’ is defined as to ‘injure or damage severely, typically so as to disfigure’.[47] The term mutilation thus refers to an act of physical violence. Hence, the terms ‘mutilation’ and ‘physical mutilation’ must be understood to be synonymous.[48]
1591  According to the 2002 ICC Elements of Crimes, mutilation consists ‘in particular’ of ‘permanently disfiguring the person or persons’ or ‘permanently disabling or removing an organ or appendage’.[49] This definition is followed in the case law of the Special Court for Sierra Leone.[50] There does not, however, seem to exist at present any national or international case law to further interpret the terms ‘mutilation’, ‘permanent disfigurement’ or ‘disabling or removal’.
1592  The term ‘permanent’ in relation to injury, as used in the Elements of Crimes, should be understood in its ordinary meaning as ‘lasting or remaining unchanged indefinitely, or intended to be so; not temporary’.[51] This implies that it would not be necessary for the effects of the injury to last forever.[52]
1593  The term ‘disfiguring’ used in the Elements of Crimes should also be understood in its ordinary meaning as spoiling someone’s appearance.[53] To ‘spoil’, in turn, requires a certain degree of severity.[54]
1594  Practices documented in contemporary armed conflicts illustrate conduct that qualifies as mutilation. Recent examples, which are not related to prisoners of war, include such acts as amputating hands or feet,[55] cutting off other body parts,[56] mutilation of sexual organs,[57] and carving someone’s body.[58] Other examples cited include taking out a person’s eye, knocking out teeth, injuring internal organs or scarring a face with acid.[59] Although there have been instances of mutilation in armed conflicts, particular instances of mutilation committed against prisoners of war since the entry into force of the Convention have not been recorded to date.
1595  Physical mutilation is not only prohibited by the Third Convention, it can also amount to one or more grave breaches of the Convention, such as torture, inhuman treatment or wilfully causing great suffering or serious injury to body or health.[60]
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ii. Exception
1596  Mutilation may be justified only on strict medical grounds, namely if it is conducive to improving the state of health of the person concerned, such as through the amputation of a gangrenous limb. A clear formulation of this exception is found in Article 13(1), according to which ‘no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest’.[61]
1597  During the negotiations, it was proposed to substitute this whole formulation with a simpler reference to the prohibition on carrying out ‘biological experiments’ or to remove the reference to ‘physical mutilation’ altogether, because such acts were already covered by the obligation to treat prisoners of war humanely at all times. Both proposals were rejected, mainly to ensure that amputations or other medical procedures carried out in the interest of the prisoner were expressly excluded from the prohibition.[62]
1598  This is the only exception. Consent may never justify an act of mutilation. This is stated explicitly in Article 11(2) of Additional Protocol I. It is also reflected in the 2002 ICC Elements of Crimes, which specify that the consent of the victim is not a defence.[63]
1599  Furthermore, prisoners of war may not be subjected to mutilation as part of a punishment under domestic law, as this exception is not foreseen in Article 13 or in humanitarian law in general.[64]
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iii. Mutilation of dead bodies
1600  The prohibition of mutilation in Article 13 applies only to the living and does not extend to the mutilation of corpses. The protection from permanent disfigurement or loss of an organ or appendage necessarily presupposes that the victim is a living human being at the time of the prohibited act. Hence, the purpose of the prohibition of mutilation does not relate to the dead. The mutilation of dead bodies is, however, prohibited under the Third Convention as it can constitute an outrage upon personal dignity.[65] It is also a distinct prohibition under customary international law.[66]
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b. Medical and scientific experiments
1601  Carrying out medical or scientific experiments on prisoners of war violates the obligation to treat them humanely. The 1949 Diplomatic Conference explicitly sought to prohibit these experiments ‘with a view to preventing a recurrence of the cruel experiments which had been made in concentration camps during the last war’.[67]
1602  During the Second World War, prisoners of war and other detainees were subjected by Nazi Germany to all kinds of inhuman medical procedures, which included testing the effects on the human body of high altitude, freezing temperatures or seawater, deliberate infection, surgical procedures, poisoning, incendiary-bomb experiments and forced sterilization.[68] Chinese, Korean, Soviet and US prisoners of war and other detainees were also used as subjects of medical research by the Japanese Imperial Army, which infected them with plague, cholera, epidemic haemorrhagic fever, tuberculosis, typhoid, tetanus, anthrax, typhus and dysentery, and used them for vivisections[69] and demonstrations of surgery techniques.[70]
1603  After the war, 23 doctors and administrators stood trial for war crimes involving medical experiments on prisoners of war and civilians before a US military tribunal at Nuremberg, of whom 16 were convicted.[71] The judgment outlined 10 basic principles to be observed while performing medical or biological experiments, in order to satisfy moral, ethical and legal principles.[72]
1604  The International Military Tribunal for the Far East did not prosecute individuals for the numerous medical and scientific experiments carried out by the Japanese Imperial Army between 1932 and 1945. A few courts in Russia and Japan prosecuted a small number of perpetrators for these crimes. In the so-called ‘Khabarovsk Trial’, a Soviet District Court found 12 perpetrators guilty of manufacturing and employing bacteriological weapons against China and Russia and of carrying out criminal experiments on human beings.[73] In the ‘Yokohama Trials’, held before the Military Commission of the US Eighth Army, around 30 military personnel of the Japanese Imperial Army and medical personnel of Kyushu Imperial University Medical College were tried for murdering US prisoners of war by medical experiments.[74] They were found guilty of permitting, or actually perpetrating, vivisections and physical maltreatment of prisoners but also of mutilating and dissecting the dead bodies of prisoners of war.[75] In the ‘Guam Trials’, Hiroshi Iwanami, then a surgeon captain and commanding officer of the Fourth Naval Hospital of the Japanese Imperial Navy, and 18 other medical officers of the Japanese Imperial Navy, were tried for having tortured US prisoners of war to death by conducting various medical experiments on them.[76]
1605  The Geneva Conventions do not contain a definition of medical and scientific experiments. Article 12 of the First and Second Conventions prohibits ‘biological experiments’, whereas Article 13 of the present Convention, Article 32 of the Fourth Convention, as well as Article 11(2) of Additional Protocol I, prohibit ‘medical or scientific experiments’. The common provisions enumerating grave breaches in the four Conventions list ‘biological experiments’ as a grave breach. It is understood, however, that there is considerable overlap between these concepts.[77]
1606  In their ordinary meaning, ‘medical and scientific experiments’ refer to conduct the primary purpose of which is to study the effects, at that time unknown, of a product or a situation (e.g. of extreme cold or altitude) on the human body. Medical or scientific experiments are prohibited unless they are justified by the medical, dental or hospital treatment of the prisoner of war and carried out in that person’s interest, namely to improve their state of mental or physical health.[78] In addition, conducting such an experiment is captured by the grave breach of ‘biological experiments’ under Article 130 of the Convention.
1607  Accordingly, Article 13 prohibits any medical procedure which is not indicated by the state of health of the prisoner of war and which is not consistent with generally accepted medical standards that would be applied under similar medical circumstances to persons who are nationals of the Party conducting the procedure and who are in no way deprived of liberty.[79] To determine the generally accepted medical standards in this area, two documents prepared by the Council for International Organizations of Medical Sciences are of particular relevance.[80]
1608  The Medical Trial,[81] subsequent legal developments[82] and State practice have made it clear that this prohibition is absolute, as a detained person cannot validly give consent to a particular biological or scientific experiment.[83] This prohibition should not, however, be understood as outlawing therapeutic or clinical research.[84] Nor does it prevent doctors in charge of prisoners of war from trying new therapeutic methods which are justified on medical grounds and are dictated solely by a desire to improve a patient’s condition. Patients are entitled to freely consent to drug trials aimed at improving their health, provided they are offered in the same manner and under the same conditions as to regular citizens.[85]
1609  Since the end of the Second World War, allegations of medical or scientific experiments against prisoners of war have been sparse. While extracting DNA does not per se amount to a medical or scientific experiment, DNA material could be used for conducting such experiments. DNA samples may be taken and analysed only with the prisoner’s informed consent, except where an overriding public interest dictates otherwise. An overriding public interest should be limited to criminal investigations or public security and, in case of death, to the identification of remains. The specific purpose should only be direct individual identification.[86]
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D. Paragraph 2: Protection against violence, intimidation, insults and public curiosity
1610  The correlative of the obligation on the Detaining Power to treat all prisoners of war humanely is the obligation to protect the prisoners at all times, in particular against acts of violence or intimidation and against insults and public curiosity.
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1. Obligation to protect
1611  According to Article 13(2), prisoners of war ‘must at all times be protected’. To protect someone means to stand up for them, to give them assistance and support and to defend or guard them from injury or danger.[87] It requires Parties to a conflict to take active steps to protect prisoners of war from harm. The obligation to protect is an obligation of conduct. The Parties to the conflict are therefore obliged not only to refrain from attacking or otherwise harming prisoners of war, but also to exercise due diligence in preventing them from being harmed by others, such as other prisoners or civilians. The obligation extends to all agents of the Detaining Power entrusted with the custody of the prisoners.[88]
1612  Article 13(2) specifies against which kinds of harm or danger prisoners of war must be protected: acts of violence or intimidation and insults and public curiosity. However, this list is preceded by the words ‘in particular’, making it clear that it is merely illustrative and that the Detaining Power is under a general obligation to protect prisoners of war from all kinds of harm and not just those listed.
1613  In addition, the obligation to protect could be interpreted as requiring the use of protective measures against other dangers arising in the context of an armed conflict, such as from ongoing hostilities, from natural hazards or from explosive remnants of war.[89] Such steps include marking prisoner-of-war camps with the letters PG or PW, when military considerations permit, and establishing camps away from military objectives.[90] The exact kind of conduct owed by a Party in a given situation depends on a variety of parameters, ranging from the imminence to the type and extent of possible harm. Thus, the graver and the more imminent the danger, the more will generally be required of a Party.
1614  Other provisions pertaining to prisoners of war specify particular aspects of this general obligation. For example, Article 14 calls for respect for their persons and honour, Articles 17(4), 87(3) and 99(2) lay down the obligation to protect them against torture and coercion, while Articles 87(3), 88, 89 and 108 regulate the manner of execution of disciplinary or judicial punishments.
1615  The fact that these different aspects of the general obligation are spelled out in subsequent provisions does not render the provisions in Article 13 redundant or in any way restricts them. On the contrary, they serve as a catch-all formulation that is sufficiently broad to close any protective gaps and to take account of the vagaries and uncertainties inherent in armed conflict.
1616  Article 13(2) sets out a general obligation to protect prisoners of war from harm, irrespective of its source. Thus, the Detaining Power must protect prisoners in its hands from violence by other prisoners. This can be particularly important in cases where prisoners who surrendered or deserted face retaliation from former comrades, which may make it necessary to house them in different quarters from prisoners who were captured.
1617  Article 13(1) requires the Detaining Power to protect prisoners of war ‘at all times’. Pursuant to Article 5(1), this means that the Detaining Power must protect the prisoners from the moment they fall into its power until their final release and repatriation.
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2. Acts of violence
1618  Prisoners of war must at all times be protected against acts of violence.[91] The words ‘act of violence’ are a catch-all formulation applicable to acts beyond those specifically listed in Article 13.[92] The reason the article obliges the Detaining Power to protect prisoners of war from violence to their lives and persons is evident. Such violence has no bearing on the enemy’s military operations or capacities. There is no military need for such resort to violence.[93] The gratuitous taking of human life or violation of a person’s physical or mental integrity is irreconcilable with the imperative of humane treatment.
1619  The term ‘violence’ is not defined in the Convention. In its ordinary meaning, violence refers to ‘behaviour involving physical force intended to hurt, damage, or kill’.[94] In this context the term covers a wide range of conducts, aimed at preserving not only a person’s physical integrity, but also their mental integrity. The rulings of international tribunals support this interpretation.[95] Today, it is also widely accepted that specific examples of violence against a protected person, such as torture, cruel or inhuman treatment, include acts detrimental to the person’s mental integrity.[96]
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3. Intimidation
1620  Prisoners of war must at all times be protected from intimidation. While the Convention does not define ‘intimidate’, in its ordinary meaning it is defined as ‘frighten or overawe (someone) especially in order to make them do what one wants’.[97] International tribunals have mostly discussed the concept in the context of the crime of torture, intimidation being one possible purpose for which torture is carried out. Intimidation can be directed at the victim but also at a third person. For example, the threat to endanger the life or body of a victim or another person close to the victim is seen as amounting to intimidation.[98] Intimidation may include both physical and verbal acts. Examples of intimidation include writing racist or derogatory slogans on property, or beating, arresting or questioning a particular group of persons.[99] In a camp setting, it is crucial that the moral integrity of the prisoners be preserved against any acts of intimidation.[100]
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4. Insults and public curiosity
a. Introduction
1621  Traditionally, the intentional exposure of prisoners of war to insults and public curiosity was a military ritual performed for propaganda purposes, which can be traced back to ancient Rome.[101] During the First and Second World Wars, members of armed forces who had fallen into the power of the enemy were frequently paraded in front of the crowds to boost the morale of the Party’s own civilian population or to psychologically subdue the inhabitants of an occupied territory.[102] Such parades were essentially humiliating and even dangerous, as they exposed prisoners to verbal and physical abuse. They were already prohibited by the 1929 Geneva Convention on Prisoners of War.[103] There are at least two cases related to the Second World War in which this prohibition served as a basis for criminal prosecution.[104] During the 1955–1975 Vietnam War, US prisoners were forced to march through the main streets of Hanoi while being brutally assaulted by angry crowds.[105]
1622  As technology advanced, prisoners became exposed to public curiosity via photographic images and video footage. This was already the case during the Second World War, where photo and film propaganda was extensively used by all the Parties. In subsequent armed conflicts, images of prisoners of war frequently appeared on television and later were posted on the internet.[106] For example, during the Vietnam War, US pilots who had fallen into the power of the enemy were shown on television, where they were forced to make anti-American statements.[107] Similar propaganda methods were used during the Iran-Iraq War in the 1980s, as well as during the 1990–1991 Gulf War, with images being shown of prisoners of war on both sides, sometimes in humiliating conditions and poses.[108] In the latter case, these practices took place despite the coalition’s policy of only allowing photographs of prisoners of war to be made public if they were not close up enough for individuals to be identified.[109] This is how, in the years after the adoption of the 1949 Conventions, the very notion of exposure to insults and public curiosity acquired a new dimension.[110]
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b. Meaning and scope of protection
1623  Article 13(2) prescribes that prisoners of war must be protected from insults and public curiosity, whether these take place at the same time or not. In its ordinary meaning, an ‘insult’ means a remark or action that treats a person ‘with disrespect or abuse’.[111] Therefore, prisoners of war must at all times be protected from any disrespectful words or acts, even when they are not being directly exposed to public curiosity, for instance a crowd chanting offensive slogans outside a prisoner-of-war camp or at the vehicle they are being transported in.
1624  Being exposed to ‘public curiosity’ as a prisoner of war, even when such exposure is not accompanied by insulting remarks or actions, is humiliating in itself and therefore specifically prohibited. For the purposes of the present article, ‘public’ should be interpreted as referring to anyone who is not directly involved in handling the prisoners of war, including other members of the Detaining Power. Exposure to public curiosity can take many forms. The prohibition undoubtedly covers parading prisoners in public.[112] Moreover, prisoners must not be exposed to humiliation when they leave their camp for work, are transferred to another facility or are being repatriated.[113] In modern conflicts, the prohibition also covers, subject to the considerations discussed below, the disclosure of photographic and video images, recordings of interrogations or private conversations or personal correspondence or any other private data, irrespective of which public communication channel is used, including the internet. Although this is seemingly different from being marched through a hostile crowd, such disclosure could still be humiliating and jeopardize the safety of the prisoners’ families and of the prisoners themselves once they are released.[114]
1625  It has been argued that publication of images of prisoners of war can serve as proof that they are alive, as recognition of their detention and as clarification of who is accountable for them, thereby providing a safeguard against their unlawful execution, forced disappearance or ill-treatment.[115] However, the Third Convention provides other more suitable and effective mechanisms for these purposes, such as the transmission of capture cards,[116] exchange of correspondence[117] and ICRC visits.[118]
1626  More compellingly, photographic and other visual evidence has been used to prosecute war crimes, promote accountability and raise public awareness of abuses, contributing to greater respect for the Geneva Conventions. For example, the Nuremberg trials following the Second World War employed a considerable quantity of photos and films as evidence, as have other international tribunals subsequently.
1627  It is thus necessary to strike a reasonable balance in the implementation of this provision between the benefit derived from making information regarding prisoners of war public, especially given the high value of such materials, and the possible humiliation and even physical harm they may cause to those who appear in them.[119] Accordingly, any materials that enable individual prisoners to be identified must normally be regarded as subjecting them to public curiosity and, therefore, may not be transmitted, published or broadcast.[120] If there is a compelling public interest in revealing the identity of a prisoner (for instance, owing to their seniority or because they are wanted by justice) or if it is in the prisoner’s vital interest to do so (for example, when they go missing), then the materials may exceptionally be released, but only insofar as they respect the prisoner’s dignity. In addition, images of prisoners in humiliating or degrading situations may not be transmitted, published or broadcast unless there is a compelling reason of public interest to do so (for instance, to bring serious violations of humanitarian law to public attention) and the images do not disclose the identities of the individuals concerned.[121] In general, the media should always resort to appropriate methods, such as blurring, pixelating or otherwise obscuring faces and name tags, altering voices or filming from a certain distance, in order to serve their function without disclosing the prisoners’ identities.[122]
1628  The above interpretation concerns purely the dissemination of images in public sources. The taking of photos/filming for internal use by the Detaining Power (such as registration and documentation of prisoners, filming of interrogations or surveillance) is permitted. Moreover, the provision is without prejudice to the work of the Protecting Powers, the ICRC or other impartial humanitarian organizations, which may have access to the personal data of prisoners of war within their mandates. At the same time, they must adhere to applicable standards of data protection.[123]
1629  The present rule applies equally to deceased prisoners of war: their remains must be treated with respect.[124] The prohibition on exposing prisoners or their identifiable images to public curiosity therefore applies in the same fashion to their dead bodies.
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c. Addressees of the obligation
1630  Article 13(2) requires that the Detaining Power protect prisoners from insults and public curiosity.[125] This obligation comprises the duty to protect prisoners from any party, including agents of the Detaining Power itself. In practice, this means that the Detaining Power must ensure that its personnel are not taking photos or videos of prisoners other than for official purposes, that official images or other personal information of prisoners are stored securely and that access to them is only allowed for personnel directly involved in the relevant duties. The use of these materials for any other purposes is strictly prohibited. For example, using images of interrogation or surveillance for other than administrative or security purposes, such as for the entertainment of camp guards, would constitute a violation of Article 13.
1631  The enforcement of the present provision requires that the media fully understand its content and relevance for the protection of prisoners’ dignity and honour. The Detaining Power should not allow unregulated access of journalists to detention facilities and prisoners’ personal data. Additionally, it is important that States Parties spread knowledge of the meaning and interpretation of the prohibition among media organizations and individual journalists and take administrative and judicial measures to prevent the distribution of prohibited images or data.[126]
1632  The global nature of modern communications means that the prohibition of insults and public curiosity does not only concern the Detaining Power. Prohibited images or private data of prisoners leaked to the press or posted on the internet can be quickly picked up and retransmitted by television channels, newspapers or websites all over the world.[127] All States party to a conflict are directly bound not to retransmit images or data protected by Article 13.[128] When the exposure takes place in States not party to the conflict, common Article 1 prohibiting any aid or assistance in violations of humanitarian law[129] and Article 129(3) of the Third Convention laying down the obligation to take measures for the suppression of acts contrary to the Conventions[130] will be applicable and require enforcement of the prohibition by third States.[131]
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E. Paragraph 3: Prohibition of reprisals
1. Definition of the concept of reprisal
1633  Traditionally, international law did not contain a centralized enforcement mechanism. It was against this background that injured States resorted to reprisals as a self-help or self-protection measure. Reprisals would be contrary to international law unless they were taken by the injured State in response to an internationally wrongful act committed by a responsible State, in order to induce the latter to comply with its obligations. ‘Reprisal’ or ‘belligerent reprisal’ are the terms commonly used in the context of international armed conflict, whereas they have become known as ‘countermeasures’ outside of this context.[132]
1634  A distinction is generally made between reprisals and retorsion. Retorsion is an unfriendly but lawful measure taken in response to another State’s unfriendly or unlawful act. Examples of retorsion would be the severance of diplomatic or consular relations, suspension of air, sea, land or other means of transport or the withdrawal of voluntary aid programmes.[133]
1635  Belligerent reprisals are measures taken in the context of an international armed conflict by a Party in reaction to a violation of international humanitarian law by an adversary.[134] Such reprisals may not be carried out for the purpose of revenge or punishment, but only with the aim of putting an end to a violation and inducing the adversary to comply with the law.[135] Although acts constituting belligerent reprisals are in principle unlawful, their wrongfulness is precluded because of the particular circumstances in which they are taken, i.e. in response to a violation committed by an adversary.[136]
1636  Furthermore, reprisals may be carried out only as a measure of last resort, when no other lawful measures are available to induce the adversary to respect the law.[137] Reprisals must cease as soon as the adversary again complies with the law.[138] It is widely recognized that reprisal action must be proportionate to the violation it aims to stop.[139] Case law from the Second World War and the ICTY rejected the claim that clearly disproportionate actions in response to the original violation could amount to lawful reprisals.[140]
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2. Belligerent reprisals over time
1637  Belligerent reprisals have constituted the most important means of coercion available to States, in particular in the conduct of hostilities.[141] The availability of reprisals may persuade an adversary not to commit violations of the law in the first place, and in general, the threat of reprisal is also seen as an important deterrent in international law.[142]
1638  Various attempts to consolidate and develop the legal regime applicable to reprisals in the context of the international law of armed conflict were undertaken without reaching the stage of adopting treaty rules.[143] Mention should be made of the draft submitted by Russia at the Brussels Conference of 1874[144] and of the Oxford Manual adopted by the Institute of International Law in 1880.[145] The Peace Conferences held in The Hague in 1899 and 1907 adopted the two successive versions of the Convention respecting the Laws and Customs of War on Land, with annexes. However, they did not address the question of reprisals.[146] Belligerent reprisals were then an accepted feature of the law of war, and their regulation or prohibition was not attainable at the time.[147]
1639  During the First World War, reprisals greatly worsened the fate of victims.[148] In 1916, the ICRC put forward the idea of prohibiting all reprisals against prisoners of war.[149] This initiative succeeded in 1929 with the adoption of Article 2 of the Geneva Convention on Prisoners of War, which was the first treaty-law provision identifying a category of persons against which reprisals may not be taken. This provision did not prevent all reprisals against prisoners of war during the Second World War, although most reprisals or alleged reprisals were committed against the civilian population in occupied territories.[150]
1640  The 1947 Conference of Government Experts accepted the ICRC’s proposal to include a prohibition of reprisals in all four draft conventions.[151] The 1949 Diplomatic Conference followed that recommendation without much discussion.[152] The Conference decided to outlaw the taking of reprisals against certain categories of persons and property and at the same time to provide for alternative methods of compliance, such as the institution of Protecting Powers,[153] the conciliation procedure,[154] the obligation to punish persons responsible for grave breaches,[155] and the enquiry procedure.[156]
1641  Measures of reprisal often affect persons not involved in the original violation and could be regarded as contrary to the principle that no one may be punished for an act that they have not personally committed; belligerent reprisals often amount to a collective punishment.
1642  Since 1949, belligerent reprisals have not been resorted to widely.[157] The reticence of States to resort to reprisals can be explained by the fact that they are mostly regarded as an ineffective means of enforcement, in particular because they risk leading to an escalation of violence through repeated reprisals and counter-reprisals.[158]
1643  In treaty law, the trend that began in 1929 towards outlawing the use of reprisals against certain persons and property protected under the Geneva Conventions[159] continued by States party to Additional Protocol I, with the extension of this prohibition to all civilians, civilian objects, cultural objects and places of worship, objects indispensable to the survival of the civilian population, the natural environment, and works and installations containing dangerous forces.[160]
1644  States have outlawed the use of belligerent reprisals against certain categories of persons or property in the 1949 Geneva Conventions and Additional Protocol I but have refrained from banning them altogether. The provisions of the Geneva Conventions, along with those of Additional Protocol I, have had the effect of substantially reducing the scope for lawful belligerent reprisals. For States party to those instruments, the only potential objects of belligerent reprisals not protected by a specific treaty provision are military objectives and members of the enemy’s armed forces who have neither surrendered nor been incapacitated.[161]
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3. Reprisals against prisoners of war
1645  Article 13(3) prohibits the taking of reprisals against prisoners of war. Recourse to reprisals would expose prisoners on all sides of an armed conflict to the risk of the escalating severity of measures against them. The prohibition of reprisals against prisoners of war is absolute.[162] It applies in all circumstances.[163] The possibility of derogating from this rule by invoking military necessity is excluded.[164]
1646  This prohibition applies to all forms of reprisals against prisoners of war, including those which would be of the same nature as the initial offence to which they respond. A Party to a conflict might be tempted to respond to an offence by taking identical or similar action. Article 13 prohibits such a recourse.
1647  Article 13 does not limit itself to measures that would amount to an attack against prisoners of war. It also covers omissions by the Detaining Power, such as withholding medical assistance.
1648  Furthermore, the 1969 Vienna Convention on the Law of Treaties provides that the possibilities for suspension or termination of a treaty in case of material breach[165] of the treaty by a State Party ‘do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties’.[166] This article does not apply retroactively to Article 13 of the Third Convention.[167] However, the object of this provision is a clear reaffirmation of the prohibition of reprisals against protected persons in all circumstances and the non-opposability of the suspension or termination of the treaty in case of a material breach.[168] The prohibition contained in Article 13 being absolute, it is clear that a material breach of the Geneva Conventions might lead a State to denounce them, but does not give them the right to direct reprisals against prisoners of war.
1649  The prohibition of reprisals contained in Article 13 is generally respected. However, claims of suspension of repatriations of prisoners of war were made in reprisal for similar conduct by the other Party.[169] It has happened, for example, that the Detaining Power has refused ICRC visits to prisoners of war in reprisal for alleged violations of the Third Convention by the opposing Party.
1650  Among the numerous instances of ill-treatment of prisoners of war in conflicts since 1949, in violation of Article 13,[170] many amounted to retaliation or revenge for similar conduct carried out by the other Party towards its prisoners, rather than reprisals. Such acts cannot be deemed reprisals as they were carried out for the purpose of revenge or punishment, and not with the aim of putting an end to a violation and inducing the adversary to comply with the law.
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Select bibliography
Humane treatment
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Condorelli, Luigi and Boisson de Chazournes, Laurence, ‘Quelques remarques à propos de l’obligation des Etats de “respecter et faire respecter” le droit international humanitaire “en toutes circonstances”’, in Christophe Swinarski (ed.), Etudes et essais sur le droit international humanitaire et sur les principes de la Croix-Rouge en l’honneur de Jean Pictet, ICRC/Martinus Nijhoff Publishers, The Hague, 1984, pp. 17–35.
Durham, Helen, ‘International Humanitarian Law and the Protection of Women’, in Helen Durham and Tracey Gurd (eds), Listening to the Silences: Women and War, Martinus Nijhoff Publishers, Leiden, 2005, pp. 95–107.
Gardam, Judith G. and Jarvis, Michelle J., Women, Armed Conflict and International Law, Kluwer Law International, The Hague, 2001.
Geiss, Robin, ‘Military Necessity: A Fundamental “Principle” Fallen into Oblivion’, in Hélène Ruiz Fabri, Rüdiger Wolfrum and Jana Gogolin (eds), Select Proceedings of the European Society of International Law, Vol. 2, 2008, Hart Publishing, Oxford, 2010, pp. 554–568.
Glover, Jonathan, Humanity, A Moral History of the Twentieth Century, Pimlico, London, 2001.
Haeri, Medina and Puechguirbal, Nadine, ‘From helplessness to agency: examining the plurality of women’s experiences in armed conflict’, International Review of the Red Cross, Vol. 92, No. 877, March 2010, pp. 103–122.
Kalshoven, Frits and Zegveld, Liesbeth, Constraints on the Waging of War: An Introduction to International Humanitarian Law, 4th edition, ICRC/Cambridge University Press, 2011.
Kleffner, Jann K., ‘Protection of the Wounded, Sick, and Shipwrecked’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 321–357.
Lindsey, Charlotte, Women facing war: ICRC study on the impact of armed conflict on women, ICRC, Geneva, 2001.
– ‘The Impact of Armed Conflict on Women’, in Helen Durham and Tracey Gurd (eds), Listening to the Silences: Women and War, Martinus Nijhoff Publishers, Leiden, 2005, pp. 21–35.
Moir, Lindsay, The Law of Internal Armed Conflict, Cambridge University Press, 2002.
Nowak, Manfred, U.N. Covenant on Civil and Political Rights, CCPR Commentary, 2nd revised edition, N.P. Engel, Kehl am Rhein, 2005.
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Pinzauti, Giulia, ‘Protecting Prisoners of War: The Mrkšić et al. Appeal Judgment’, Journal of International Criminal Justice, Vol. 8, No. 1, 2010, pp. 199–219.
Rogers, A.P.V., Law on the Battlefield, 3rd edition, Manchester University Press, 2012.
Rona, Gabor and McGuire, Robert J., ‘The Principle of Non-Discrimination’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 191–205.
Sanna, Silvia, ‘International Humanitarian Law and the Treatment of Protected Persons’, in Andrea de Guttry, Harry H.G. Post, Gabriella Venturini (eds), The 1998-2000 War between Eritrea and Ethiopia: An International Legal Perspective, T.M.C. Asser Press, The Hague, 2009, pp. 307–339.
Viseur Sellers, Patricia and Rosenthal, Indira, ‘Rape and Other Sexual Violence’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 343–368.
Ill-treatment and cruel treatment
Dörmann, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003.
Doswald-Beck, Louise, Human Rights in Times of Conflict and Terrorism, Oxford University Press, 2011, pp. 194–227.
Droege, Cordula, ‘“In truth the leitmotiv”: the prohibition of torture and other forms of ill-treatment in international humanitarian law’, International Review of the Red Cross, Vol. 89, No. 867, September 2007, pp. 515–541.
Evans, Malcolm, ‘Getting to Grips with Torture’, in The Definition of Torture: Proceedings of an Expert Seminar, Association for the Prevention of Torture, Geneva, 2001, pp. 33–49.
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Nowak, Manfred, ‘Challenges to the absolute nature of the prohibition of torture and ill-treatment’, Netherlands Quarterly of Human Rights, Vol. 23, No. 4, 2005, pp. 674–688.
– ‘What Practices Constitute Torture? US and UN standards’, Human Rights Quarterly, Vol. 28, No. 4, 2006, pp. 809–841.
Nowak, Manfred and Janik, Ralph R.A., ‘Torture, Cruel, Inhuman or Degrading Treatment or Punishment’, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, 2015, pp. 317–342.
Reyes, Hernán, ‘The worst scars are in the mind: psychological torture’, International Review of the Red Cross, Vol. 89, No. 867, September 2007, pp. 591–617.
Rodley, Nigel S. and Pollard, Matt, The Treatment of Prisoners under International Law, 3rd edition, Oxford University Press, 2009.
Röling, B.V.A. and Rüter, C.F., The Tokyo Judgment: The International Military Tribunal for the Far East (I.M.T.F.E.), 29 April 1946–12 November 1948, 2 volumes, University Press, Amsterdam, 1977.
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Sassòli, Marco, International Humanitarian Law: Rules, Controversies, and Solutions to Problems Arising in Warfare, Edward Elgar Publishing, Cheltenham, 2019.
Sivakumaran, Sandesh, ‘Sexual Violence Against Men in Armed Conflict’, European Journal of International Law, Vol. 18, No. 2, 2007, pp. 253–276.
Mutilation
Dörmann, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, Cambridge University Press, 2003.
Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Volume I: Rules, Cambridge University Press, 2005, Rules 92 and 113, https://www.icrc.org/customary-ihl/eng/docs/v1.
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– ‘Violations of Common Article 3’, in Roy S. Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence, Transnational Publishers, 2001, pp. 207–213.
Zimmermann, Andreas, ‘Mutilation’, in Otto Trifterer (ed.), Commentary on the Rome Statute of the International Criminal Court Observers’ Notes, Article by Article, 2nd edition, Hart Publishing, Oxford, 2008, pp. 380–383, 489–490 and 499.
Medical and scientific experiments
Harris, Sheldon H., ‘Medical Experiments on POWs’, in Roy Gutman, David Rieff and Anthony Dworkin (eds), Crimes of War: What the Public Should Know, 2nd edition, W.W. Norton & Company, New York, 2007, p. 287.
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Tsuchiya, Takashi, ‘Why Japanese doctors performed human experiments in China in 1933–1945’, Eubios Journal of Asian and International Bioethics, Vol. 10, No. 6, November 2000, pp. 179–180.
Violence and intimidation
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Doswald-Beck, Louise, ‘The right to life in armed conflict: does international humanitarian law provide all the answers?’, International Review of the Red Cross, Vol. 88, No. 864, December 2006, pp. 881–904.
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Public curiosity
Krähenmann, Sandra, ‘Protection of Prisoners in Armed Conflict’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd edition, Oxford University Press, 2013, pp. 359–411.
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Risius, Gordon and Meyer, Michael A. ‘The protection of prisoners of war against insults and public curiosity’, International Review of the Red Cross, Vol. 33, No. 295, August 1993, pp. 288–299.
Reprisals
Albrecht, A.R., ‘War Reprisals in the War Crimes Trials and in the Geneva Conventions of 1949’, American Journal of International Law, Vol. 47, No. 4, October 1953, pp. 590–614.
Almond, Harry H., Jr. and Kalshoven, Frits, ‘Reprisals: the Global Community is not yet Ready to Abandon Them’, Proceedings of the Annual Meeting of the American Society of International Law, Vol. 74, April 1980, pp. 196–202.
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1 - For the temporal scope of application of the Third Convention, see Article 5(1).
2 - Pictet (ed.), Commentary on the Fourth Geneva Convention, ICRC, 1958, p. 204 (humane treatment ‘is in truth the leitmotiv of the four Geneva Conventions’).
3 - See, in particular, Articles 25–38.
4 - Hereinafter, ‘belligerent reprisal’ is referred to simply as ‘reprisal’. For a definition of the term ‘reprisal’ and regarding the concept of reprisal measures under international law, see section E.1. For the applicability of this concept in non-international armed conflict, see the commentary on Article 3, section M.6.
5 - The prohibition of reprisals against protected persons can be found in all four Conventions; see First Convention (Article 46); Second Convention (Article 47); and Fourth Convention (Article 33(3)).
6 - Article 76 of the 1863 Lieber Code provides: ‘Prisoners of war shall be fed upon plain and wholesome food, whenever practicable, and treated with humanity.’ More generally, Article 79 of the Code is an illustration of the distinctive importance attributed to humane treatment: ‘Every captured wounded enemy shall be medically treated, according to the ability of the medical staff.’ See also Article 73 of the Code: ‘All officers, when captured, must surrender their side arms to the captor. They may be restored to the prisoner in marked cases, by the commander, to signalize admiration of his distinguished bravery or approbation of his humane treatment of prisoners before his capture.’ See also Article 23 of the 1874 Brussels Declaration.
7 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 248, 349 and 381.
8 - See also Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, paras 11–12 and 138, and Prisoners of War, Ethiopia’s Claim, Partial Award, 2003, paras 12–13 and 125. See also Sanna, 2009, p. 317.
9 - Human rights law is similarly based on the principle of humane treatment of persons. In particular, human rights instruments stress the requirement of humane treatment and respect for human dignity of persons deprived of their liberty. See American Declaration on the Rights and Duties of Man (1948), Article XXV; International Covenant on Civil and Political Rights (1966), Article 10(1); American Convention on Human Rights (1969), Article 5(1); European Prison Rules (2006), Rule 1; Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), Principle 1; and Basic Principles for the Treatment of Prisoners (1990), para. 1.
10 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 693, adding ‘inflicting the minimum of pain’ as another element.
11 - For a further discussion of the distinct needs of different categories of prisoners of war, see Introduction, section A.3.b.
12 - See First Convention, Article 12(1); Second Convention, Article 12(1); Fourth Convention, Articles 5 and 27(1); and Additional Protocol I, Article 75(1). For the requirement of humane treatment of detainees in non-international armed conflict, see Article 3(1)(1) and Additional Protocol II, Article 4(1).
13 - See e.g. Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment, 2007, section III-D-5: ‘La garantía general de trato humano provee el principio guía general subyacente a las convenciones de Ginebra, en el sentido de que su objeto mismo es la tarea humanitaria de proteger al individuo en tanto persona, salvaguardando los derechos que de allí se derivan.’ (‘The general guarantee of humane treatment provides the overall guiding principle behind the Geneva Conventions, in the sense that the object itself is the humanitarian task of protecting the individual as a person, safeguarding the rights derived from it.’). See also Central African Republic, Instructor’s Manual, 1999, p. 5 (‘Les combattants capturés et les civils qui se trouvent sous l’autorité de la partie adverse ont droit au respect de leur vie, de leur dignité, de leurs droits personnels et de leurs convictions.’); France, Doctrine on Management of Captured Persons, 2011, para. 312 (‘Tout individu capturé au cours d’un engagement militaire bénéficie d’un traitement respectueux de sa condition d’être humain, du droit de la guerre, du droit national et du droit international.’); Netherlands, Military Manual, 2005, p. 159 (‘Every detainee should be treated with human dignity.’); New Zealand, Military Manual, 2019, Vol. 4, p. 12-11, para. 12.3.1 (‘Members of the NZDF [New Zealand Defence Force] are to treat all persons deprived of their liberty or under NZDF control humanely regardless of their legal status or any other consideration. They are to respect the honour, dignity, person, convictions and religious beliefs of all such persons.’); Sri Lanka, Military Manual, 2003, para. 1043 (‘Prisoners of war must always be humanely treated. That means that: … their dignity and person must be respected’); United Kingdom, Joint Doctrine Captured Persons, 2015, pp. 10-3–10-4, para. 1006 (‘Our UK Armed Forces must treat all CPERS [captured persons] humanely in all circumstances and at all times. … It is important that staff treat every CPERS on admission with dignity and respect, regardless of their status or demeanour.’); and United States, Naval Handbook, 2007, paras 11.1–11.2 (‘Humane Treatment … All detainees shall: … f. Be respected as human beings.’), Department of Defense (DoD) Directive No. 2310.01E, DoD Detainee Program, 19 August 2014, para. 3(b) (‘It is DoD policy that: … All detainees will be treated humanely and with respect for their dignity, in accordance with applicable U.S. law and policy and the law of war. The humane treatment requirements in this section apply during all military operations, however characterized.’), and Operational Law Handbook, 2017, p. 104: ‘Treat all prisoners humanely and with respect and dignity.’
14 - See e.g. Australia, Manual of the Law of Armed Conflict, 2006, paras 9.48 and 9.49; Canada, Code of Conduct, 2002, p. 2-9; Djibouti, Manual on International Humanitarian Law, 2004, p. 23; Sri Lanka, Military Manual, 2003, para. 1603; and Turkey, LOAC Manual, 2001, p. 49.
15 - See e.g. Australia, Manual of the Law of Armed Conflict, 2006, para. 9.58; Chad, IHL Manual, 1996, p. 28 (version before Chad ratified Additional Protocol II); Nepal, Army Handbook, 2011, p. 6; Sri Lanka, Military Manual, 2003, para. 1222; Turkey, LOAC Manual, 2001, p. 158; United Kingdom, Joint Doctrine Captured Persons, 2015, p. 2-7, para. 211(i); and United States, Naval Handbook, 2007, para. 11.2.
16 - See e.g. Chad, IHL Manual, 1996, p. 28; Denmark, Military Manual, 2016, p. 476; Sri Lanka, Military Manual, 2003, para. 1221; Turkey, LOAC Manual, 2001, p. 158; United Kingdom, Joint Doctrine Captured Persons, 2015, p. 2-5, para. 211(b); and United States, Naval Handbook, 2007, para. 11.2.
17 - See e.g. United Kingdom, Joint Doctrine Captured Persons, 2015, p. 2-6, para. 211(f), and United States, Naval Handbook, 2007, para. 11.2.
18 - See e.g. Chad, IHL Manual, 1996, p. 28; Sri Lanka, Military Manual, 2003, para. 1228; Turkey LOAC Manual, 2001, p. 158; and United Kingdom, Joint Doctrine Captured Persons, 2015, p. 2-6, para. 211(d).
19 - See e.g. Canada, Prisoner of War Handling Manual, 2004, p. 1B-4; Chad, IHL Manual, 1996, p. 28; Denmark, Military Manual, 2016, p. 475; Sri Lanka, Military Manual, 2003, para. 1228; Turkey, LOAC Manual, 2001, pp. 159–160; United Kingdom, Joint Doctrine Captured Persons, 2015, p. 2-7, para. 211(h): and United States, Naval Handbook, 2007, para. 11.2.
20 - See e.g. Chad, IHL Manual, 1996, p. 28; Denmark, Military Manual, 2016, p. 476; Sri Lanka, Military Manual, 2003, para. 1228; and Turkey, LOAC Manual, 2001, p. 158.
21 - See e.g. New Zealand, Military Manual, 2019, Vol. 4, p. 12-14, para. 12.3.7, and United States, Department of Defense, Review of Department Compliance with President’s Executive Order on Detainee Conditions of Confinement, 2009, p. 29.
22 - See e.g. Chad, IHL Manual, 1996, p. 28; Nepal, Army Handbook, 2011, p. 3; Sri Lanka, Military Manual, 2003, para. 1228; Turkey, LOAC Manual, 2001, pp. 159–160; United Kingdom, Joint Doctrine Captured Persons, 2015, p. 2-7, para. 211(l); and United States, Department of Defense (DoD), DoD Detainee Program, Directive No. 2310.01E, 19 August 2014, section 3(b)(1) (‘Policy’). See also Copenhagen Process: Principles and Guidelines (2012), paras 2, 9 and 10.
23 - ICTY, Delalić Trial Judgment, 1998, paras 520–543.
24 - For further details on the prohibition of sexual violence, see the commentaries on Article 3, section M.6, and on Article 14, paras 1664 and 1684.
25 - See ICTR, Akayesu Trial Judgment, 1998, para. 688. For an overview of this concept in armed conflicts, see e.g. Durham; Gardam/Jarvis; Haeri/Puechguirbal; Brammertz/Jarvis; and Viseur Sellers/Rosenthal.
26 - See ICC Elements of Crimes (2002), Article 8(2)(e)(vi)-6; see also Articles 7(1)(g)-6 and 8(2)(b)(xxii)-6.
27 - See ICTY, Kunarac Appeal Judgment, 2002, paras 125–133. In this case, the Appeals Chamber found that situations of detention amounted to circumstances that were so coercive as to negate any possibility of consent.
28 - Sivakumaran, pp. 265–267; see also pp. 257–258 for examples of conflicts in which violence against men took place. See also Sassòli, p. 283, para. 8.135.
29 - For additional interpretations of the formulas ‘at all times’ and ‘in all circumstances’, see the commentary on Article 3, section F.1.c.
30 - ICTY, Mrkšić Appeal Judgment, 2009, para. 71.
31 - For more details on the questioning of prisoners of war, see Article 17(4).
32 - The principle of non-reciprocity in the sense described here only relates to the obligations a Party to a conflict is subject to in a particular international or non-international armed conflict. It needs to be distinguished from the separate question whether States are party to the same treaty, the condition for that treaty being binding between States. This question is based in the general international law of treaties and is decisive for the law applicable between States party to a particular international armed conflict. See also the commentaries on Article 1, para. 221, and Article 3, para. 598 of the Third Convention and Article 19 of the First Convention, para. 1809.
33 - See e.g. Condorelli/Boisson de Chazournes, p. 19, noting on the introduction of the ‘in all circumstances’ formula in Article 25(1) of the 1929 Geneva Convention on the Wounded and Sick and Article 82 of the 1929 Geneva Convention on Prisoners of War: ‘On visait donc, à travers l’utilisation d’une clause d’un style nouveau, à soustraire le régime des obligations de caractère strictement humanitaire à la logique de la réciprocité.’ (‘The aim was thus, through the use of a new kind of clause, to exempt the regime of obligations of a strictly humanitarian character from the logic of reciprocity.’); Moir, p. 60 (‘Humane treatment is not only to be afforded “in all circumstances” (i.e. not reciprocally), but must also be observed “without any adverse distinction”’); and Sandoz/Swinarski/Zimmermann, paras 49–51, commenting on ‘in all circumstances’ in Article 1 of Additional Protocol I. See also ICTY, Kupreškić Trial Judgment, 2000, para. 517: ‘[T]he tu quoque argument is flawed in principle. It envisages humanitarian law as based upon a narrow bilateral exchange of rights and obligations. Instead, the bulk of this body of law lays down absolute obligations, namely obligations that are unconditional or in other words not based on reciprocity.’ See, in this respect, also Article 60(5) of the 1969 Vienna Convention on the Law of Treaties, which precludes States from suspending or terminating for material breach any treaty provision ‘relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties’.
34 - See e.g. Kleffner, pp. 326–327, commenting on ‘in all circumstances’ in Article 12 of the First Convention. See also the commentary on Article 3, para. 597.
35 - See United States, Military Tribunal at Nuremberg, Hostages case, Judgment, 1948, p. 647. It may only be considered where humanitarian law makes explicit provision for the exception of military necessity; see Geiss, 2010, p. 558.
36 - See also Article 49(1), as well as the commentaries on Article 15, fn. 27, and on Article 30, para. 2278. In another context, the term has been defined as ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’; Constitution of the World Health Organization (1946), Preamble. The social dimension of health is covered in the Geneva Conventions by some provisions, such as Article 38 of the Third Convention.
37 - See ICTY, Blaškić Trial Judgment, 2000, para. 156; Delalić Appeal Judgment, 2001, para. 424; Kordić and Čerkez Trial Judgment, 2001, para. 245; and Naletilić and Martinović Trial Judgment, 2003, para. 339.
38 - For an illustration of some of these ill-treatments, see Eritrea-Ethiopia Claims Commission, Prisoners of War, Ethiopia’s Claim, Partial Award, 2003. The Commission concluded, for example, that Eritrea violated international law by failing to provide Ethiopian prisoners of war with the required minimum standard of medical care (para. 124) and by permitting unnecessary suffering of prisoners during transfer between camps (para. 138). For examples of ill-treatment in other contexts, see Memorandum from the ICRC to the States Parties to the Geneva Conventions of August 12, 1949 concerning the conflict between the Islamic Republic of Iran and the Republic of Iraq, Geneva, 7 May 1983; ‘Activités Extérieures’, Revue internationale de la Croix-Rouge, Vol. 65, No. 742, July–August 1983, pp. 226–228; Second Memorandum from the ICRC to the States Parties to the Geneva Conventions of August 12, 1949 concerning the conflict between the Islamic Republic of Iran and the Republic of Iraq, Geneva, February 1984; ‘Activités Extérieures’, Revue internationale de la Croix-Rouge, Vol. 66, No. 746, March–April 1984, pp. 119–121. See also UN Security Council, Prisoners of War in Iran and Iraq: The report of a mission dispatched by the Secretary-General, UN Doc. S/16962, 22 February 1985, in particular paras 115–125, 273 and 294, and Report of the mission dispatched by the Secretary-General on the situation of prisoners of war in the Islamic Republic of Iran and Iraq, UN Doc. S/20147, 24 August 1988, in particular paras 98–101. In general, see also Wallace.
39 - This scenario does not fall squarely within Article 13(1), as this part of Article 13 prohibits any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war. However, the Detaining Power remains under the obligation to respect prisoners and protect them from all acts of violence on the basis of Article 13(2).
40 - ICTY, Delalić Trial Judgment, 1998, para. 510.
41 - Mettraux, p. 76. See ICTY, Krnojelac Trial Judgment, 2002, para. 131, and Delalić Trial Judgment, 1998, para. 536, citing European Court of Human Rights, A v. UK, Judgment, 1998, para. 20.
42 - ICTR, Akayesu Trial Judgment, 1998, para. 502. This statement was made in relation to the crime of genocide by causing serious bodily or mental harm to members of a group.
43 - ECCC, Kaing Trial Judgment, 2010, para. 454. See also ICTY, Krstić Trial Judgment, 2001, paras 511–513.
44 - See e.g. Lieber Code (1863), Articles 16 and 44 (prohibiting maiming) and Article 56 (prohibiting mutilation).
45 - See Fourth Convention, Article 32; Additional Protocol I, Articles 11(2)(a) and 75(2)(a)(iv); and Additional Protocol II, Article 4(2)(a).
46 - ICRC Study on Customary International Humanitarian Law (2005), Rule 92.
47 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 945.
48 - See Dörmann, 2012, pp. 230 and 397, and Zimmermann, pp. 489–490. The Conventions and Protocols use the term ‘mutilation’, the exception being Article 13(1) of the present Convention and Article 11(2)(a) of Additional Protocol I, which use the term ‘physical mutilation(s)’.
49 - ICC Elements of Crimes (2002), Article 8(2)(b)(x)-1, (c)(i)-2 and (e)(xi)-1. For a commentary on these elements, see Dörmann, 2012, pp. 229–233, 396–397 and 482–484. See also La Haye, 2001, pp. 164–166 and 208–209.
50 - See SCSL, Brima Trial Judgment, 2007, para. 724, and Sesay Trial Judgment, 2009, para. 180, and Appeal Judgment, 2009, para. 1198.
51 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 1068.
52 - See also United States, Manual for Military Commissions, 2010, Part IV, para. 5(14)(c), which considers the offence of mutilation to be complete ‘even though there is a possibility that the victim may eventually recover the use of the member or organ, or that the disfigurement may be cured by surgery’.
53 - See Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 410 (to ‘disfigure’ is defined as to ‘spoil the appearance of’).
54 - See ibid. p. 1395 (to ‘spoil’ is defined as to ‘diminish or destroy the value or quality of’). See SCSL, Sesay Trial Judgment, 2009, para. 179 (‘mutilation is a particularly egregious form of prohibited violence’); ICTR, Kayishema and Ruzindana Trial Judgment, 1999, para. 108 (mutilation amounts to ‘serious bodily harm’), and Appeal Judgment, 2001, para. 361 (some types of harm are more severe than others, for instance mutilation); Akayesu Trial Judgment, 1998, paras 706–707 (mutilation inflicts ‘serious’ bodily harm); and Canada, Quebec Superior Court, Criminal Division, Munyaneza case, Judgment, 2009, para. 88 (mutilation is recognized as an act ‘causing serious physical harm’). See also United States, Manual for Military Commissions, 2010, Part IV, para. 5(14)(c): A disfigurement need not mutilate any entire member to come within the article, or be of any particular type, but must be such as to impair perceptibly and materially the victim’s comeliness. The disfigurement, diminishment of vigor, or destruction or disablement of any member or organ must be a serious injury of a substantially permanent nature.
55 - See e.g. SCSL, Koroma Indictment, 2003, para. 31.
56 - See e.g. ICTR, Kajelijeli Trial Judgment, 2003, paras 935–936, and Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath, September 1996.
57 - See e.g. ICTR, Bagosora Trial Judgment, 2008, para. 2266; Kajelijeli Trial Judgment, 2003, paras 935–936; ICTY, Tadić Trial Judgment, 1997, paras 45 and 237; UN Commission on Human Rights, Report of the Special Rapporteur on violence against women, its causes and consequences on her mission to Colombia (1–7 November 2001), UN Doc. E/CN.4/2002/83/Add.3, 11 March 2002, para. 42; and Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath, September 1996.
58 - See e.g. SCSL, Koroma Indictment, 2003, para. 31.
59 - See United States, Manual for Military Commissions, 2010, Part IV, para. 5(14)(c).
60 - See the commentary on Article 130, para. 5264. See also ICC Statute (1998), Article 8(2)(c)(i), which lists mutilation as a serious violation of common Article 3, while Article 8(2)(e)(xi) lists it as a serious violation of the laws and customs of war. For an explanation of the difference, see the commentary on Article 3, para. 926. The prohibition of mutilation as a war crime is also set forth in the legislation of numerous States; see ICRC, Customary International Humanitarian Law, Practice relating to Rule 92, section IV, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule92.
61 - See also Additional Protocol I, Article 11(1)–(2). Mutilation is also prohibited under common Article 3, of which it amounts to a serious violation; see the commentary on Article 3, sections G.2.c. and M.3. The ICC Elements of Crimes, for the war crime of mutilation, explicitly includes the exception contained in Article 13; see ICC Elements of Crimes (2002), Article 8(2)(c)(i)-2. The exception is also included in the case law of the Special Court for Sierra Leone; see SCSL, Brima Trial Judgment, 2007, para. 725, and Sesay Trial Judgment, 2009, para. 181.
62 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 381.
63 - See ICC Elements of Crimes (2002), fn. 46 pertaining to Article 8(2)(b)(x)-1, Element 3, and fn. 69 pertaining to Article 8(2)(e)(xi)-1, Element 3. The omission of this footnote in relation to Article 8(2)(c)(i) might be ‘a drafting error’ according to Dörmann, 2003, p. 396.
64 - On this issue, see the commentary on Article 87, para. 3699.
65 - See the commentaries on Article 3, section G.4, and on Article 120, para. 4594.
66 - See ICRC Study on Customary International Humanitarian Law (2005), Rule 113.
67 - Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 248.
68 - See United States, Military Tribunal at Nuremberg, The Medical Trial, Judgment, 1947.
69 - See Tsuchiya, pp. 179–180. See also ‘Digging up Japan’s past: Deafening silence – An investigation into wartime atrocities, but the media keeps strangely quiet’, The Economist, 24 February 2011; J. Kevin Baird and Sangkot Marzuki, War Crimes in Japan-Occupied Indonesia: A Case of Murder by Medicine, University of Nebraska, 2015; Jing-Bao Nie, Nanyan Guo, Mark Selden and Arthur Kleinman (eds), Japan’s Wartime Medical Atrocities: Comparative inquiries in science, history, and ethics, Routledge, Abingdon, 2010.
70 - See Harris, pp. 287–288.
71 - See United States, Military Tribunal at Nuremberg, The Medical Trial, Judgment, 1947. There were also other trials dealing with this war crime; see e.g. Poland, Supreme National Tribunal, Hoess case, Trial Judgment, 1947, and United States, Military Tribunal at Nuremberg, Milch case, Trial Judgment, 1947.
72 - For a review of these principles, see Dörmann, pp. 73–74.
73 - They were sentenced to between 2 and 25 years in a labour camp. See Materials on the Trial of Former Servicemen of the Japanese Army Charged with Manufacturing and Employing Bacteriological Weapons, Foreign Languages Publishing House, Moscow, 1950, in particular pp. 20–26 and 422–428. See also Valentyna Polunina, ‘The Khabarovsk trial: the Soviet riposte to the Tokyo Tribunal’, in Kirsten Sellars (ed.), Trials for International Crimes in Asia, Cambridge University Press, 2016, pp. 121–144, and Jing-Bao Nie, ‘The West’s Dismissal of the Khabarovsk Trial as “Communist Propaganda”: Ideology, evidence and international bioethics’, Journal of Bioethical Inquiry, Vol. 1, No. 1, April 2004, pp. 32–42.
74 - Such experiments included draining blood and injecting sea water instead, brain operations, and resection and removal of body organs; see Reports of General MacArthur, MacArthur in Japan: The Occupation: Military Phase, Volume I Supplement, Washington, D.C., 1966, reprinted 1994, p. 107, fn. 56.
75 - See United States, Military Commission at Yokohama, Yokoyama case, Trial, 1949–1950. See also Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 19451951, University Press of Texas, Austin, 1979, pp. 83–90.
76 - See United States, Military Commission at Guam, Iwanami case, Trial, 1947.
77 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 381, where delegates discussed the choice of terms, and p. 191. See also Levie, pp. 358–359.
78 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 191.
79 - This wording is taken from Article 11(1) of Additional Protocol I and fn. 46 of the 2002 ICC Elements of Crimes regarding the war crime of medical or scientific experiments under the 1998 ICC Statute. For a full explanation, see the commentary on Article 130 of the present Convention, section D.4.
80 - See Council for International Organizations of Medical Sciences (CIOMS), International Ethical Guidelines for Epidemiological Studies, CIOMS, Geneva, 2009, and International Ethical Guidelines for Biomedical Research Involving Human Subjects, CIOMS, Geneva, 2002.
81 - United States, Military Tribunal at Nuremberg, The Medical Trial, Judgment, 1947, p. 396.
82 - See Article 11(2) of Additional Protocol I: ‘It is, in particular, prohibited to carry out on such persons, even with their consent: … medical or scientific experiments.’
83 - See Henckaerts/Doswald-Beck, commentary on Rule 92, pp. 320–323, referring to many international instruments, official statements and examples of case law that refer to this prohibition without mentioning a possible exception if the detained person consents to the procedure.
84 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, p. 191: Biological experiments. The Committee discussed at great length whether these words required definition, and more particularly whether their scope ought not to be restricted by adding, for example: ‘not necessary for their medical treatment’. In reality, however, the word biological, in its generally accepted sense, does not apply to therapeutic treatment, whether medical or surgical.
85 - For more details, see the commentary on Article 50, section E.
86 - In such cases, the DNA sample must be taken solely for the purpose of identifying the individual, collected by qualified persons, destroyed after the purpose is served, analysed in laboratories working according to accredited standards, and protected from unauthorized access and use. See ICRC, Missing people, DNA Analysis and Identification of Human Remains: A Guide to Best Practice in Armed Conflicts and Other Situations of Armed Violence, 2nd edition, ICRC, Geneva, 2009, p. 41. See also the commentaries on Article 16 of the First Convention, para. 1584; on Article 19 of the Second Convention, para. 1761; on Article 17 of the Third Convention, para. 1833, and on Article 122 of the Third Convention, para. 4795.
87 - Pictet (ed.), Commentary on the Third Geneva Convention, ICRC, 1960, p. 141.
88 - ICTY, Mrkšić Appeal Judgment, 2009, para. 73 (holding that the Third Convention ‘invests all agents of a Detaining Power into whose custody prisoners of war have come with the obligation to protect them by reason of their position as agents of the Detaining Power. No more specific investment of responsibility in an agent with regard to prisoners of war is necessary.’).
89 - For example, prisoners interned in a place where the climate is injurious to them must be removed as soon as possible to a more favourable climate (Article 22(2)), and they may not be sent to or detained in areas where they may be exposed to the fire of the combat zone (Article 23(1)).
90 - See Article 23(4).
91 - Article 13 is without prejudice to the Detaining Power’s right to use weapons, for example to maintain camp order and discipline, provided this is done in compliance with the conditions of Article 42.
92 - For example, prisoners of war must be protected against sexual violence; see the commentary on Article 14, paras 1664 and 1684.
93 - As was succinctly put in the preamble to the 1868 St Petersburg Declaration, ‘the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; … for this purpose it is sufficient to disable the greatest possible number of men’.
94 - Concise Oxford English Dictionary, 12th edition, p. 1614. See also Brian A. Garner (ed.), Black’s Law Dictionary, 11th edition, Thomson Reuters, 2019, p. 1881.
95 - For the use of the term ‘psychological violence’, see e.g. ECCC, Kaing Trial Judgment, 2010, para. 164; ICTY, Krajišnik Trial Judgment, 2006, para. 1146, Hadžihasanović Trial Judgment, 2006, para. 1372, and Aleksovski Trial Judgment, 1999, para. 226; and SCSL, Brima Trial Judgment, 2007, para. 1141.
96 - Mental suffering in itself can be of such a serious nature as to qualify as cruel treatment. See e.g. ICTY, Naletilić and Martinović Trial Judgment, 2003, para. 369; Inter-American Court of Human Rights, Loayza Tamayo v. Peru, Judgment, 1997, para. 57; European Court of Human Rights, Ireland v. UK, Judgment, 1978, para. 167; and UN Committee against Torture, Consideration of reports submitted by States Parties under Article 19 of the Convention: United States of America, UN Doc. CAT/C/USA/CO/2, 25 July 2006, para. 13. Similarly, for another type of violence, mental pain and suffering on its own can be severe enough to amount to torture; see e.g. ICTY, Kvočka Trial Judgment, 2001, para. 149; Limaj Trial Judgment, 2005, para. 236; Haradinaj Retrial Judgment, 2012, para. 417; and Mrkšić Trial Judgment, 2007, para. 514. See also Article 17(4), which states that ‘no physical or mental torture … may be inflicted on prisoners of war’.
97 - Concise Oxford English Dictionary, 12th edition, p. 744.
98 - See e.g. ICTY, Furundžija Trial Judgment, 1998, paras 162–163 and 180.
99 - See e.g. ICTY, Karadžić Trial Judgment, 2006, para. 688.
100 - On respect for the moral integrity of prisoners, see the commentary on Article 14, section C.2.b. During the 1980–1988 Iran-Iraq War, the ICRC noted with concern that a large number of Iraqi prisoners of war had been subjected by Iranian authorities to intimidation and other serious violations of the Third Convention. See ICRC, Memorandum from the ICRC to the States Parties to the Geneva Conventions of August 12, 1949 concerning the conflict between the Islamic Republic of Iran and the Republic of Iraq, 7 May 1983; ‘Activités Extérieures’, Revue internationale de la Croix-Rouge, July–August 1983, Vol. 65, No. 642, pp. 226–228; ICRC, Memorandum from the ICRC to the States Parties to the Geneva Conventions of August 12, 1949 concerning the conflict between the Islamic Republic of Iran and the Republic of Iraq, February 1984; ‘Activités Extérieures’, Revue internationale de la Croix-Rouge, Vol. 66, No. 746, March–April 1984, pp. 119–121. See also UN Security Council, Prisoners of War in Iran and Iraq: The report of a mission dispatched by the Secretary-General, UN Doc. S/16962, 22 February 1985, in particular paras 126–131 and 212–224, and Report of the mission dispatched by the Secretary-General on the situation of prisoners of war in the Islamic Republic of Iran and Iraq, UN Doc. S/20147, 24 August 1988, in particular paras 44–46 and 76–80.
101 - Arnold Krammer, Prisoners of War: A Reference Handbook, Praeger Security International, Westport, 2008, p. 4: ‘Generally, an enemy soldier captured by the Roman legions … was led through the streets of the Roman town or village in celebration of victory, or to entertain the public.’
102 - Such was, among many other examples, the case for: 1,000 allied prisoners of war marched by the Japanese in Korea in August 1942 to undermine respect among the local population for the British and Americans; US prisoners paraded in Paris and Rome by the Germans in the summer of 1944; and 57,000 German soldiers marched, in their turn, through the streets of Moscow in July 1944. See, in particular, Lord Russell of Liverpool, The Knights of Bushido: A Short History of Japanese War Crimes, Cassel, London, 2002, pp. 60–62.
103 - Geneva Convention on Prisoners of War (1929), Article 2, para. 2.
104 - United States, Military Commission at Florence, Maelzer case, Judgment, 1949, pp. 53–55, and International Military Tribunal for the Far East, Case of the Major War Criminals, Judgment, 1948, p. 533.
105 - This incident is referred to as the ‘Hanoi March’; see Stuart I. Rochester and Frederick Kiley, Honor Bound; American Prisoners of War in Southeast Asia 1961–1973, Naval Institute Press, Annapolis, 1999, pp. 188–207.
106 - See examples from the Iraq-Iran War in the 1980s, the Gulf War in 1991 and the war between Iraq and the United States in 2003. See Maia/Kolb/Scalia, pp. 196–197; ICRC, Annual Report 1991, ICRC, Geneva, p. 98; and Rogers, p. 53.
107 - See Maia/Kolb/Scalia, pp. 194–195.
108 - See ibid. pp. 196–197. See also ICRC, Annual Report 1991, ICRC, Geneva, p. 98.
109 - See also W. Hays Parks, ‘The Gulf War: A Practitioner’s View’, Dickinson Journal of International Law, Vol. 10, No. 3, 1992, pp. 393–423, at 418; Peter Rowe, ‘Prisoners of war in the Gulf area’, in Peter Rowe (ed.), The Gulf War 1990–91 in International and English Law, Routledge, London, 1993, pp. 188–204, at 195, fn. 47.
110 - On the posting of information about, or images of, prisoners of war on the internet, see also Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (2017), commentary on Rule 135, para. 5.
111 - Concise Oxford English Dictionary, 12th edition, Oxford University Press, 2011, p. 737.
112 - See also Krähenmann, p. 390, and Sanna, p. 984.
113 - According to Article 46, transfers of prisoners must be ‘effected humanely’. According to Article 119, ‘[r]epatriation shall be effected in conditions similar to those laid down in Articles 46 to 48’, thus including the requirement that they be ‘effected humanely’.
114 - Risius/Meyer, p. 293: ‘For example, during the 1991 Gulf War the Iraqi authorities were reported to have arrested the families of Iraqi soldiers who appeared on television as prisoners of war, on suspicion that the soldiers had deserted their posts in order to surrender.’
115 - See Eric David, Principes de droit des conflits armés, 6th edition, Bruylant, Brussels, 2019, p. 659; Yoram Dinstein, ‘Jus in Bello Issues Arising in the Hostilities in Iraq in 2003’, Israel Yearbook on Human Rights, Vol. 34, 2004, p. 12; and Maia/Kolb/Scalia, pp. 194–200.
116 - Article 70.
117 - Article 71.
118 - Article 126.
119 - For an illustration of this balancing act, see the case law which followed the Abu Ghraib incidents. After the first images of Abu Ghraib abuses were leaked to the press, the American Civil Liberties Union (ACLU) asked the US Department of Defense under the Freedom of Information Act to release any photographs and videotapes taken in that detention facility. In 2004, when the Department of Defense declined the request, the ACLU filed a lawsuit against it. The US Government argued that the release of these images would actually violate the public curiosity provision of the Geneva Conventions. See United States, American Civil Liberties Union v. US Department of Defense, Declaration of Edward R. Cummings in Support of Motion for Summary Judgment, 2005, para. 17. The Court ruled in favour of public disclosure with redaction of ‘all identifying characteristics of the persons in the photographs’. See also United States, Court of Appeals for the Second Circuit, American Civil Liberties Union v. US Department of Defense, Judgment, 2008, p. 4.
120 - See e.g. Germany, Military Manual, 2013, p. 120, para. 811, and New Zealand, Military Manual, 2019, Vol. 4, p. 12-13, para. 12.3.3. See also Krähenmann, p. 374: ‘[P]hotographic reports about prisoners of war do not violate the principle of humane treatment if the photographs do not enable the identification of individual prisoners.’ See also Maia/Kolb/Scalia, pp. 194–200, and Rogers, p. 53.
121 - See also the memorandum entitled ‘“Public Curiosity” in the 1949 Geneva Conventions. The Interpretation Developed by the Government of the United Kingdom of Great Britain and Northern Ireland and the British Red Cross’, 26 November 2007: (1) Any image of Prisoners of War (POWs) as identifiable individuals should normally be regarded as subjecting such individuals to public curiosity and should not be transmitted, published or broadcast. Where the specific circumstances of a case make it necessary in the public interest to reveal the identity of a POW (e.g. because of the person’s seniority, or because the person is a fugitive from international justice), great care should be taken to protect the person’s human dignity. (2) Images of POWs individually or in groups in circumstances which undermine their public dignity should not normally be transmitted, published or broadcast. In the exceptional circumstances where such images are transmitted, for example, to bring to public attention serious violations of international humanitarian law, individual identities must be protected.
122 - Rogers, p. 53.
123 - On the protection of personal data of prisoners, see the commentary on Article 122, section E.1.d.
124 - The provisions regulating treatment of the dead require that their remains be respected (Additional Protocol I, Article 34) and honourably buried (First Convention, Article 17, Second Convention, Article 20, and Third Convention, Article 120).
125 - On the concept of the duty to protect, see section D.1.
126 - One example of State practice in this regard is the initiative taken by the French Conseil supérieur de l’audio-visuel (CSA) in connection with the 2003 invasion of Iraq. Immediately before the conflict, the Council issued a recommendation to the media ‘de ne pas diffuser de documents contraires aux stipulations de la convention de Genève sur les prisonniers de guerre’ (‘not to broadcast documents contrary to the provisions of the Geneva Convention on Prisoners of War’); Recommandation du 18 mars 2003 à l’ensemble des services de télévision et de radio relative au conflit au Moyen-Orient, 18 March 2003. In particular, the Council requested the media ‘de veiller d’une part à ce que les prisonniers de guerre ne puissent être identifiés, d’autre part à ce que leurs propos ne soient pas diffusés’ (‘to ensure on the one hand that prisoners of war cannot be identified and on the other hand that their statements are not broadcast’); ‘Prisonniers de guerre: respecter la Convention de Genève’, Press release, 24 March 2003. See also United States, Army Regulation on Enemy Prisoners, Retained Personnel, Civilian Internees and Other Detainees, 1997, para. 1-5.d.
127 - For some examples, see Joshua Partlow, ‘Guard at hanging blamed for covert video of Hussein’, The Washington Post, 4 January 2007, and Josh Halliday, ‘Gaddafi death video: BBC defends use of ‘shocking’ images’, The Guardian, 21 October 2011.
128 - Some authors argue that each such retransmission is a new violation of Article 13. See Françoise J. Hampson, ‘Liability for War Crimes’, in Peter Rowe and David Travers (eds), The Gulf War 1990-1991 in International and English Law, Routledge, London, 1993, p. 252, and Maia/Kolb/Scalia, pp. 194–200.
129 - See the commentary on Article 1, section E.3.a.
130 - See the commentary on Article 129, section E.
131 - Dörmann/Colassis, p. 337: ‘[T]he States party to the Geneva Conventions should therefore take concrete measures to put an end to these retransmissions by requesting, for example, their media to be prudent and to show restraint, even if their motives for showing the pictures may in themselves be honorable.’
132 - For more details on the concept of countermeasures, see Draft Articles on State Responsibility (2001), pp. 128–139.
133 - See the International Law Commission’s definition of ‘retorsion’, ibid. p. 128.
134 - In this commentary, the word ‘reprisal’ is used as a synonym for ‘belligerent reprisal’. For the applicability of this concept in non-international armed conflict, see the commentary on Article 3, section M.6.
135 - Reprisals should therefore be directed at the adversary that violated humanitarian law and may not be directed against allies of the State that committed the violation. See Henckaerts/Doswald-Beck, commentary on Rule 145, p. 513: ‘There is limited practice allowing reprisals against allies of the violating State but it dates back to … 1930 and to the Second World War. Practice since then appears to indicate that resort to such reprisals is no longer valid.’
136 - See ibid. For the evolution of the concept of reprisals, see Barsalou, pp. 335–347; Kwakwa, pp. 52–58; and Kalshoven.
137 - See the case law, mainly from the Second World War, in Henckaerts/Doswald-Beck, commentary on Rule 145, p. 516. See also Greenwood, p. 232; Sandoz/Swinarski/Zimmermann, para. 3457; and Darcy, pp. 193–194. In Kupreškić, the ICTY also stated that reprisals may be carried out only after a warning to the adverse Party requiring cessation of the violation has remained unheeded; see Kupreškić Trial Judgment, 2000, para. 535, and Martić Trial Judgment, 2007, para. 466.
138 - This aspect was already included in the 1880 Oxford Manual and appears consistently in military manuals, official statements and State practice; see Henckaerts/Doswald-Beck, commentary on Rule 145, p. 518.
139 - Ibid. p. 517. It has been stated that ‘reprisals should exceed neither what is proportionate to the prior violation nor what is necessary if they are to achieve their aims’; Greenwood, pp. 230–231.
140 - See Italy, Military Tribunal of Rome, Kappler case, Judgment, 1948; Hass and Priebke case, Judgment in Trial of First Instance, 1997, section 4; Netherlands, Special Court (War Criminals) at The Hague, Rauter case, Judgment, 1948, pp. 129–138; and United States, Military Tribunal at Nuremberg, Hostages case, Judgment, 1948, p. 61. See also Special Arbitral Tribunal, Naulilaa case, 1928, pp. 1025–1028; ICTY, Kupreškić Trial Judgment, 2000, para. 535; and Martić Trial Judgment, 2007, paras 466–468. For a further discussion of belligerent reprisals, see also Sassòli, pp. 82–84.
141 - Sandoz/Swinarski/Zimmermann, para. 3428.
142 - On these issues, see Kwakwa, pp. 74–75.
143 - See Sandoz/Swinarski/Zimmermann, para. 3432.
144 - See Kalshoven’s detailed historical account of this issue, pp. 45–51. The proposal to adopt an article on reprisals was not accepted by the government experts.
145 - Ibid. pp. 51–55. See, in particular, Oxford Manual (1880), Articles 85 and 86.
146 - Kalshoven, pp. 56–66. Neither of these conferences made any major contribution to the clarification of the concept of belligerent reprisals. However, they touched on the concept of collective punishment contained in Article 50 of the 1899 and 1907 Hague Regulations.
147 - Kalshoven, p. 51.
148 - However, only one First World War agreement on prisoners of war addressed the issue of reprisals, forbidding their use without a prior notification; see Agreement between the United States of America and Germany concerning Prisoners of War, Sanitary Personnel and Civilians (1918), Article 182.
149 - Sandoz/Swinarski/Zimmermann, para. 3434. See the ICRC’s 1916 appeal in Report of the International Committee of the Red Cross on its Activities during the Second World War (September 1, 1939–June 30, 1947), Volume I: General Activities, ICRC, Geneva, May 1948, pp. 365–372; see also Kalshoven, pp. 69–73.
150 - For instances of reprisals against prisoners of war, see Kalshoven, pp. 178–200, and Rosas, pp. 445–446. See also Darcy, p. 198, and United States, Military Commission at Rome, Dostler case, Judgment, 1945. For examples of reprisals against the civilian population of occupied territories, see Kalshoven, pp. 200–210.
151 - Report of the Conference of Government Experts of 1947, p. 275 and Pictet (ed.) Commentary on the First Geneva Convention, ICRC, 1952, pp. 343–344.
152 - See Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 183–184 and 199, and Kalshoven, pp. 263–272.
153 - See Articles 8 and 10.
154 - See Article 11.
155 - See Article 49.
156 - For the enquiry procedure, see Article 132. These mechanisms have so far remained rather ineffective as alternative methods of compliance. See Greenwood, pp. 238–239; Kwakwa, pp. 76–79; and Darcy, pp. 249–250. Under Additional Protocol I, an International Fact-Finding Commission was established, but it too has yet to be invoked by Parties to an armed conflict.
157 - For some illustrations of the use of belligerent reprisals during the Vietnam War (1955–1975) and specific instances in the Democratic Republic of the Congo in 1964 and in Israeli-occupied Arab territory in 1966, see Kalshoven, pp. 289–321. For the case of Viet Nam, see, in particular, Donald N. Zillman, ‘Political Uses of Prisoners of War’, Arizona State Law Journal, No. 237, 1975, pp. 238–251.
158 - See Henckaerts/Doswald-Beck, commentary on Rule 145, p. 514, and Sandoz/Swinarski/Zimmermann, para. 3433.
159 - See also First Convention, Article 46; Second Convention, Article 47; and Fourth Convention, Article 33(3).
160 - See Additional Protocol I, Articles 51(6), 52(1), 53(c), 54(4), 55(2) and 56(4). See also Additional Protocol I, Article 20, which prohibits reprisals against persons and objects protected by Part II of Additional Protocol I.
161 - This is without prejudice to the small number of States that made reservations and declarations to Articles 51–55 of Additional Protocol I. For a commentary on these reservations and declarations; see Henckaerts/Doswald-Beck, commentary on Rule 146, p. 521.
162 - For a discussion of the absolute character of the prohibition of reprisals against prisoners of war, see Bretonnière, pp. 44–47.
163 - For the applicability of the concept of reprisals in non-international armed conflict, see the commentary on Article 3, section M.6.
164 - On this issue, see Albrecht, pp. 611–612, who concludes that: ‘[T]he history of the provisions also shows that their object was to prevent reprisals against the enumerated categories of persons and property under all conditions. … The Conventions of 1949 must be held to admit of no exception by way of reprisals.’
165 - A material breach of a treaty is ‘the violation of a provision essential to the accomplishment of the object or purpose of the treaty’; Vienna Convention on the Law of Treaties (1969), Article 60(3).
166 - Ibid. Article 60(5).
167 - See ibid. Article 4 on the non-retroactivity of the provisions of that Convention.
168 - See the proposal made by Switzerland and the motivation behind the inclusion of Article 60(5), Official Records of the United Nations Conference on the Law of Treaties, First Session, UN Doc. A/CONF.39/C.1/SR.61, in particular pp. 354–359.
169 - See Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 2003, paras 143–163. For a criticism of this decision, see Marco Sassòli, ‘The Approach of the Eritrea-Ethiopia Claims Commission towards the Treatment of Protected Persons in International Humanitarian Law’, in Andrea de Guttry, Harry H.G. Post and Gabriella Venturini (eds), The 1998-2000 War Between Eritrea and Ethiopia, T.M.C. Asser Press, The Hague, 2009, pp. 342–344. See also similar events which allegedly took place at the end of the conflict between Iran and Iraq in 1988; John Quigley, ‘Iran and Iraq and the Obligations to Release and Repatriate Prisoners of War after the Close of Hostilities’, American Journal of International Law, Vol. 5, No. 73, 1989, pp. 73–86.
170 - For a statistical analysis presenting the frequency of retaliations against prisoners of war, see Wallace, in particular pp. 84–90, who argues that retaliations against prisoners of war occurred frequently in the post-1949 period.