Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.

2517  The Detaining Power has the responsibility to maintain security, order and discipline in prisoner-of-war camps. This is necessary to avoid acts of violence against the guards or other prisoners and to prevent prisoners of war from escaping and resuming hostilities. Maintaining order and discipline within the camp also helps the Detaining Power to fulfil its obligation to protect prisoners of war in accordance with the Convention.[1]

2518  A substantial portion of the Third Convention is therefore composed of articles concerned with order and discipline in prisoner-of-war camps, namely Articles 39–42 (on discipline) and Articles 82–98 (on penal and disciplinary sanctions, of which Articles 91–94 deal specifically with escapes).

2519  Prisoners of war are subject to the laws, regulations and orders in force in the armed forces of the Detaining Power, as set forth in Article 82. At the same time, they may have a duty to escape under the domestic laws and regulations of the Power on which they depend.[2] The tension between these conflicting obligations explains why maintaining law and order and preventing escapes is an important yet sensitive task for the Detaining Power.

2520  While the Detaining Power may enforce the captivity of prisoners of war and maintain law and order in the camp, resort to weapons must remain exceptional. In particular, pursuant to this provision, resort to weapons, for example to prevent an escape, ‘shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances’.

2521  Article 28 of the 1874 Brussels Declaration and Article 68 of the 1880 Oxford Manual stated that ‘[a]rms may be used, after summoning, against a prisoner of war attempting to escape’. That clause was not, however, included either in the 1899 or 1907 Hague Regulations or in the 1929 Geneva Convention on Prisoners of War. This was not because its relevance was disputed, but because ‘it was felt that this was a delicate matter to express in a Convention’.[3] Drafters feared that stating in a humanitarian convention that weapons may be used against prisoners of war would be understood as an invitation to employ lethal force rather than as a reminder of the associated limits on such use of force.[4]

2522  The experience of the Second World War, which included excessive use of force against and murder of prisoners of war, notably after escape attempts,[5] as well as the establishment of ‘death lines’ in camps or ‘death zones’ outside camps, which prisoners of war were absolutely forbidden to cross or enter under penalty of being fired upon by guards or sentries,[6] showed the necessity of regulating the use of weapons against prisoners of war and prompted the ICRC to propose a provision on this topic in the Third Convention.[7] The Conference of Government Experts in 1947 supported this proposal,[8] and the ICRC draft remained virtually unchanged until the adoption of the Convention in 1949.[9]

2523  The only subject of debate in relation to Article 42 was where in the Convention to place it. Initially, it was supposed to be introduced alongside the articles concerning escape.[10] However, since the circumstances in which weapons may be used against prisoners of war had been expanded to include other situations besides escape attempts, unlike the original formulations in the Brussels Declaration and Oxford Manual, it was decided to insert the article instead in the chapter on discipline.[11]

2524  Article 42 sets down the conditions under which weapons may be used against prisoners of war, as defined in Article 4. Prisoners of war do not need to be interned in a camp to be protected under Article 42.[12] It suffices that they ‘have fallen into the power of the enemy’.[13] Thus, an enemy combatant who has been captured on the battlefield without yet being interned in a prisoner-of-war camp is equally protected under Article 42. As to the end of the applicability of Article 42, see section F.

2525  Article 42 governs specifically the use of weapons against prisoners of war. There is no generally accepted definition of weapon under international humanitarian law. In its ordinary meaning, a weapon refers to a ‘thing designed or used for inflicting bodily harm or physical damage’.[14] An analysis of different definitions adopted at the national and international levels reveals the existence of two common elements in the understanding of the notion of weapon as: (i) an object, material, instrument, mechanism, device or substance, which is used to (ii) kill or injure or damage, threaten or destroy.

2526  What the drafters had in mind when they used the term ‘weapons’ in Article 42 was mostly weapons with firepower, such as firearms, as indicated by the obligation to give warnings appropriate to the circumstances. Nevertheless, Article 42 is not so limited and applies to weapons of all types, be they portrayed as ‘lethal’ or ‘less lethal’.[15] A weapon described as ‘less lethal’ can kill or cause serious injury, for example a plastic or rubber bullet fired at short range or at the head or chest, riot-control agents used in enclosed spaces or an electric-shock weapon delivering repeated shocks. It can be misleading to describe a weapon solely in terms of its ‘lethality’, as any weapon can be used to lethal effect.[16] It would therefore be overly restrictive to limit Article 42 to weapons intended to kill or seriously injure.

2527  While Article 42 governs all types of weapons, it is understood that the legality of the choice of using ‘lethal’ weapons in any given situation will depend on the degree to which doing so can be considered as required as an overly ‘extreme measure’ in the given circumstances. Its assessment is inherently situation-specific in terms of both the choice of weapon and how it is employed, including in terms of a graduated, escalating use of force as dictated by the circumstances of each case.

2528  The typical situation in which weapons are used against prisoners of war is when they are ‘escaping or attempting to escape’.[17] A prisoner may escape or attempt to escape when already interned in a camp but also just after falling into enemy hands. These different scenarios will inform the degree to which the use of weapons may be considered an ‘extreme measure’.[18]

2529  Mere preparatory acts, such as when prisoners acquire tools, maps, plans or other aids facilitating flight or when they start to dig a tunnel or stock food supplies, do not justify the use of weapons.[19] In such cases, the detaining authority may impose disciplinary sanctions pursuant to Article 92, but the use of weapons would be unnecessary because the prisoner is not yet eluding the control of the detaining authority. The only possible justification for the use of weapons in such a case would be self-defence or the defence of others, i.e. if the prisoner is otherwise posing an imminent threat to life or limb. In the same vein, if a prisoner of war attempts to escape and has been recaptured, the detaining authority may impose disciplinary punishment but – without prejudice to its entitlement to restrain an uncompliant prisoner – may not otherwise use force.[20] The use of weapons on the basis of Article 42 may only be preventive, not punitive.

2530  There are other scenarios in which the detaining authority may be authorized to use weapons as an extreme measure. This is evidenced by the use of the word ‘especially’ that precedes the examples of escape/escape attempts in Article 42. The article does not, however, specify in which other types of situations the use of weapons may be lawful.

2531  In particular, two additional situations arise in practice.[21] The first is when a prisoner is posing an imminent threat to life or limb, either to the guards or to fellow prisoners. In such cases, the guards may use force to defend themselves or others as a last resort, in accordance also with applicable rules and principles under domestic law and international human rights law.[22]

2532  The second is when prisoners of war start a riot, i.e. a violent manifestation, giving rise to threats to the lives and safety of the guards and/or of other prisoners, and which may endanger the ability of the detaining authority to maintain control over, and guarantee the safety of, the prisoners or prevent their escape. In such a case, the detaining authority may use weapons as a last resort against violent prisoners but may not fire indiscriminately into a group of rioting prisoners.[23] Here again, as in all other circumstances in which the use of weapons against prisoners of war may be lawful, the use of force must be escalated gradually.

2533  In the absence of a threat to life or limb, the use of lethal force is never justified. For instance, lack of respect for military orders on the part of prisoners of war, such as refusing to perform work assigned by the detaining authority, may justify the imposition of disciplinary sanctions but not the use of lethal force. In any event, humane treatment of prisoners of war is a paramount obligation in international law.

2534  Even in situations of escape/escape attempts, riots or self-defence, Article 42 requires that the use of weapons constitute an ‘extreme measure, which shall always be preceded by warnings appropriate to the circumstances’. The use of the term ‘extreme measure’ points to the fact that the purpose of Article 42 is to protect prisoners of war against the unwarranted use of weapons. Beyond that, however, the provision does not clarify what this means in operational practice.

2535  Since 1949, under international human rights law, international legal standards have developed pertaining to the use of force in law enforcement operations, including the circumstances under which individuals may lawfully be deprived of their lives by State agents in the performance of their duties.[24] Furthermore, law enforcement rules and principles exist in virtually all domestic legal orders.[25] In practice, these legal frameworks seek to achieve a similar type of protective result in terms of their imposing a graduated response and escalation of the use of force when it comes to the use of weapons.

2536  While the scenarios envisaged by Article 42 are in a context of an armed conflict, with the detaining authority ultimately wishing to prevent prisoners of war from rejoining the fighting ranks of the Power on which they depend, the ICRC is nevertheless of the view that requirements under Article 42 would in many respects match the international human rights rules and principles of necessity, proportionality and precaution[26] for the practical operationalization of what counts as an ‘extreme measure’ vis-à-vis prisoners of war, who cannot be considered as a lawful target again prior to their escape being successful.[27]

2537  This implies notably that the use of force must be a last resort and that a differentiated use of force needs to be applied.

2538  Article 42 is indeed one of the few provisions of humanitarian law that govern the use of force in situations that do not pertain to the conduct of hostilities.[28] The provision requires not only that warnings appropriate to the circumstances be given each time weapons are used against prisoners of war, but also that the resort to weapons must constitute an ‘extreme measure’.[29] Such force is not seen as a first resort, but as a last resort.

2539  This is because persons deprived of their liberty are clearly hors de combat and ‘have fallen into the power of the enemy’ in the sense of Article 4 of the Convention.[30] Thus, they cannot be engaged under the rules governing the conduct of hostilities, regardless of the fact that they were lawful targets before their capture.[31]

2540  To ensure that weapons are only used as a last resort and after warning, it is important to set in place a clear and detailed legal and administrative framework, including through directives such as rules of engagement and instructions, so that the persons in charge of a prisoner-of-war camp know the limited circumstances under which they may use weapons against prisoners of war in accordance with international law.

2541  Detaining authorities are expected to provide camp guards with appropriate training, including in alternatives to the use of weapons, such as de-escalation techniques.[32] This may be all the more important, as military training is not necessarily identical to training for detention management. The review of training programmes and operational procedures in the light of particular incidents is advisable.[33] To the extent feasible, guards should be equipped with self-defensive equipment and various types of weapons and ammunition, including alternative means to firearms, (e.g. hand-held batons, tear gas, plastic and rubber bullets or electric-shock weapons) that are appropriate for detention settings.[34] These preventive steps allow a differentiated use of force and decrease the need to use weapons of any kind.

2542  Detaining authorities must also familiarize prisoners of war with the directives they are expected to follow to avoid situations in which force and weapons may be used against them. In accordance with Article 41, detaining authorities must make available to the prisoners, in a language they understand, the text of the Convention, as well as ‘regulations, orders, notices and publications of every kind’ relating to the conduct of prisoners of war. Humanitarian law does not prescribe what type of document should provide such information, which could be integrated into camp rules or feature in a separate document dedicated to the use of force.

2543  After the actual use of force, an official enquiry must be conducted each time a prisoner of war is killed or seriously injured in the special circumstances provided for in Article 121. This includes, in particular, ‘[e]very death or serious injury of a prisoner of war caused or suspected to have been caused by a sentry’. Relatives of wounded or deceased prisoners of war must be informed of any such incident through the intermediary of the Protecting Powers and/or the Central Tracing Agency.[35]

2544  Article 42 mentions ‘warnings appropriate to the circumstances’ as a preventive step, which must be taken to avoid as far as possible resort to the use of weapons.

2545  Warnings ‘appropriate to the circumstances’ may be conveyed either verbally or by means of an instrument (e.g. whistle or bell). The warnings must be capable of being clearly perceived and understood by those to whom they are addressed.[36] Language and cultural differences are therefore important aspects of any training provided to persons in charge of guarding prisoners of war. To be considered ‘appropriate’, the warning must also be followed, where feasible, by sufficient time for it to be observed.[37]

2546  The number of warnings required is not specified in Article 42, but it should be noted that the Convention uses the plural form.[38] Three is often recommended, but the appropriate number is context-dependent.[39] In some circumstances, a warning may be pointless or not feasible if it unduly places the operator, or other persons, at risk of death or serious injury.[40]

2547  Warning shots are potentially risky, as they may harm bystanders or trigger an escalation in violence.[41] For these reasons, some States have replaced them by a mere ‘show of force’, i.e. the guards showing what weapons they have at their disposal and of their readiness to use them, such as by placing a finger on the trigger or charging a weapon. When not forbidden under domestic law, warning shots should only be fired with due caution.[42]

2548  Any use of firearms against a person is potentially lethal irrespective of what is being aimed at (e.g. legs, knees or chest).[43] ‘Shoot to wound’, such as aiming low (e.g. at legs) cannot be considered as a warning or as a preventive step; it is an actual use of potentially lethal force, which is strictly limited under Article 42.

2549  If the facts require the use of lethal force, there is no legal requirement to use non-lethal force first.[44] Rules of engagement or other orders applicable to any given situation may, however, contain such a requirement when it comes to the use of force against prisoners of war.

2550  Where the Detaining Power has placed anti-personnel mines outside a prisoner-of-war camp without marking them or informing the prisoners of their presence, this may – depending on the circumstances – amount to the use of weapons without warning against an escaping prisoner. Placing such mines in these conditions may also amount to violations of other international rules governing their use.

2551  Article 42 limits the use of weapons against prisoners of war to extreme cases. Nevertheless, if prisoners succeed in escaping, they become targetable again under the rules on the conduct of hostilities, and the limits imposed by Article 42 no longer apply.

2552  In this regard, it becomes crucial to determine at what point an escape can be considered successful, as this will have an impact on the rules to be applied to the use of force. Two views can be discerned in this respect.[45] According to one view, an escape is successful only when the conditions for a successful escape as defined in Article 91 are fulfilled.[46]

2553  According to the second view, if escaping prisoners of war have made their way outside the camp or are otherwise no longer under immediate pursuit, the escape is already successful for the purpose of targeting and they can be targeted under the rules on the conduct of hostilities, under which the restrictions on the use of force in Article 42 do not apply (and no further warnings are required).[47]

2554  The law on this issue is unsettled. It is suggested that resort may be had to the rules on the conduct of hostilities when escaping prisoners of war can no longer be considered hors de combat, either because a) they are about to rejoin their armed forces or the armed forces of an allied Power and thus targetable again under the rules on the conduct of hostilities based on their combatant status, or b) they are otherwise directly engaged in a hostile act (not including the escape itself) after having made their way outside the camp and escaped the control of the Detaining Power; and this regardless of whether their escape has been successful in the sense of Article 91. This is because, as indicated above, the reason for the special restrictions on the use of force in Article 42 are based on the fact that the person is hors de combat, under the control of the Detaining Power. When this is no longer the case, there is no further need to apply Article 42.

2555  Outside escape situations, another scenario involving prisoners of war that may raise difficult issues is where a riot occurs in a prisoner-of-war camp and escalates to a point where prisoners of war manage to mount collective hostilities against the detaining authority, and the latter loses control over the camp. In such a case, it is arguable that internment becomes merely theoretical, that the prisoners of war are no longer hors de combat and that their hostile acts may be responded to under the rules on the conduct of hostilities. Such situations are, however, exceptional. In the vast majority of cases, and as long as the detaining authority exercises sufficient control in the camp, weapons may be used only as an extreme measure.[48]