ISSN 1857-4122
Publicaţie ştiinţifică de profil Categoria B
Trimite un articol
ISSN 1857-4122
Publicaţie ştiinţifică de profil Categoria B
Trimite un articol

Legal regulation of the prisoner of war protection — from the capture to the repatriation

Alexandru Cauia, PhD

Dreptul Internaţional Umanitar reglementează protecţia unui şir de categorii de persoane. Asigurarea mecanismului juridic de protecţie a prizonierilor de război este unul din elementele importante ale acestei ramuri ale dreptului internaţional deoarece stabileşte garanţiile necesare pentru participanţii legali în cadrul conflictelor armate intenraţionale. Prezentul articol reflectă garanţiile juridice conferite prizonierului de război din momentul capturării sale în prizonierat şi pînă la momentul repatrierii acestuia.

Cuvinte-cheie: drept internaţional umanitar, prizonier de război, protecţie umanitară

Reglementări legale ale protecţiei prizonierilor de război — de la capturare la repatriere

International humanitarian law regulates the protection of a number of categories of individuals. The assurance of the mechanism of legal protection of war prisoners in one of the important elements of this branch of international law, because it establishes the necessary warranties for the lawful participants in the international armed conflicts. The article in case reflects legal warranties provided to the prisoner of war from the moment of his capture to the moment of his repatriation.

Keywords: prisoner of war, humanitarian protection, armed conflict

In the opinion of certain authors, the norms provided by the 3rd Geneva Convention can be divided into four sections: capture, conditions of support, disciplinary sanctions and penal responsibility of the prisoner, liberation and repatriation1.

The fundamental idea of the system of protection, instituted by the 3rd Geneva Convention and reinforced by the Additional Protocol from 1977 is that the captivity doesn’t represent a measure of repression, but it is a precautionary measure towards the disarmed enemy combatant, which is under the action of a certain authority, being responsible for the way he is treated2.

The Universal Declaration of Human Rights inspired the Convention, and this generated the reinforcement of a number of principles and imperatives concerning life, physical inviolability and psychical inviolability of the prisoner.

The states are obliged, from the moment of signing the Convention, to complete national legislations with the measures of suppression of acts, which are against the Convention. Republic of Moldova is no exception from this rule. Internal penal legislation provides that „a grave violation of international humanitarian law during the international or internal armed conflicts, leading to grave consequences, is punished by prison sentence from 16 to 20 years or by life imprisonment“3.

The authority which is holding prisoners in captivity will have to sustain the free maintenance of prisoners and provide free medical assistance for them4.

1. Capture. Immediately after he had been captured at the seat of war, the prisoner is transmitted to the superiors and transferred to a place of assembly where he undergoes the formalities of registration. The prisoners cannot be obliged to declare other formalities than those which are necessary for their identification: first name, last name, military grade, date of birth, identification number. An attempt to mislead the capturing state is sanctioned through the restriction of advantages that are afforded by the grade or the statute. These data is to be engraved on an identification plaque, made of a resistant material, with two detachable parts, on which there will be mentioned the blood group and the religion. In case of death, a half of the plaque with the identical elements will be transmitted to the authority, which is in charge of the prisoner5.

With the exception of weapons, military equipment, horses and military documents, the prisoners can keep personal belongings, including money, badges, national signs, decorations and objects of sentimental value. After the capture, the prisoners have to be immediately escorted to the camps situated in a sufficiently big distance from the line of battle, in order to provide their security and inviolability.

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.

Nevertheless if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with6.

The evacuation must be performed with humanness and in conditions similar to those which are provided for the troops of the Detaining power. Unmounted passage will be restricted normally to stages of maximum 20 km. a day, excepting the situation when it is needed to reach the food deposits or sources of water situated at longer distances.

In the camps prisoners can be grouped depending on the nationality, language and customs, so that the conditions of maintenance, clothing and food as favorable as those which are given to the forces of the Detaining power7.

Places of detention, as well as buildings and barracks, need to provide all warranties of hygiene and healthfulness. Certain provisions refer to the intellectual needs of the prisoners, such as the encouragement of cultural activities and sport, facilitation of obtaining books for reading etc. 8 Therefore the regime of the prisoners has a certain character of a compulsory domicile, in the limits of which they have a sort of freedom of movement on the basis of municipal or garrison regulations9.

Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men.

In any camps in which women prisoners of war, as well as men, are accommodated, separate dormitories shall be provided for them10. The Detaining power can intern women prisoners of war in another camp, if this is considered necessary in order to respect the provisions of the 3rd Convention11.

2. Conditions of maintenance. The custom that obliges the belligerent parties to provide the prisoners of war with all that is strictly required is stipulated in a great number of regulations and military instructions, and its violation is incriminated in the national legislation of many states12.

The belligerents will communicate to each other the placement of war camps in order to avoid the attack upon them, this being the aim of their disposition, the distinctive signs13 of the camps must be seen from above.

The basic daily food rations of prisoners of war shall be sufficient in quality and variety to keep them in good health. Prisoners of war who work shall be supplied with additional rations. Sufficient drinking water shall be supplied and prisoners of war shall be permitted to use tobacco. Any disciplinary measures affecting food are prohibited.

The prisoners of war have right to clothing, footwear and underwear. Uniforms of enemy armed forces captured by the Detaining Power should, if suitable for the climate, be made available to clothe prisoners of war.

Canteens can be installed in all camps, where prisoners of war may procure at the local market prices foodstuffs or ordinary articles in daily use14.

The Detaining Power shall be bound to take all hygiene measures and to provide necessary medical care using medical and religious personnel that was detained for the attendance of prisoners of war15.

Every camp shall have an infirmary, and isolation wards shall, if necessary, be set aside for cases of contagious or mental disease. Prisoners of war whose condition necessitates a surgical operation or other medical intervention can be admitted to any civilian medical unit where such treatment can be given. Special facilities shall be afforded for the care to be given to the disabled, in particular to the blind.

Prisoners of war who are physicians, dentists, nurses and who were not attached to the medical service, may be required by the Detaining Power to exercise their medical functions in the interests of prisoners of war dependent on the same Power.

As refers to the moral conditions of the internment, in the camps there will be provided facilities corresponding to the religious offices, so that prisoners of war shall have the possibility to manifest their faith, in conditions when discipline is respected16.

Every camp shall be placed under the direct authority of a responsible officer from the regular armed forces of the Detaining power who will apply the Convention under the direct control of his government. This warranty establishes the responsibility of the officer as refers to the observance of the Convention provisions, as well as the responsibility of the government to which he belongs.

Prisoners of war must salute and show respect to the external marks and military grades of the commandment of the detention camp and its military personnel. Officer prisoners of war are bound to salute only officers of a higher rank of the Detaining Power.

Orders, regulations and notices shall be issued in a language which prisoners of war understand, and this rule is valid for the interrogations as well. The Detaining power is bound to provide the text of the 3rd Convention in an accessible place and in the language of the prisoners of war.

The prisoners of war can be employed in different kind of labour, with condition of its retribution and in accordance with the norms of international humanitarian law17.

Besides work connected with camp administration, installation or maintenance, prisoners of war may be compelled to do only such work as is included in the following classes: agriculture; industries connected with the production or the extraction of raw materials; manufacturing industries, with the exception of metallurgical, machinery and chemical industries; public works and building operations which have no military character or purpose; transport and handling of stores which are not military in character or purpose; commercial business, and arts and crafts; domestic service; public utility services having no military character or purpose.

Prisoners of war shall be allowed to exercise their right of complaint, in conformity with Article 78.

Prisoners of war must be granted suitable working conditions, especially as regards accommodation, food, clothing and equipment; such conditions shall not be inferior to those enjoyed by nationals of the Detaining Power employed in similar work; account shall also be taken of climatic conditions.

The Detaining Power, in utilizing the labour of prisoners of war, shall ensure that in areas in which prisoners are employed, the national legislation concerning the protection of labour, and, more particularly, the regulations for the safety of workers, are duly applied18.

Prisoners of war shall receive training and be provided with the means of protection suitable to the work they will have to do and similar to those accorded to the nationals of the Detaining Power.

Conditions of labour shall in no case be rendered more arduous by disciplinary measures. Unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature. No prisoner of war shall be assigned to labour which would be looked upon as humiliating for a member of the Detaining Power’s own forces. The removal of mines or similar devices shall be considered as dangerous labour.

The duration of the daily labour of prisoners of war, including the time of the journey to and fro, shall not be excessive, and must in no case exceed that permitted for civilian workers in the district, who are nationals of the Detaining Power and employed on the same work19.

Prisoners of war must be allowed, in the middle of the day’s work, a rest of not less than one hour. This rest will be the same as that to which workers of the Detaining Power are entitled, if the latter is of longer duration. They shall be allowed in addition a rest of twenty–four consecutive hours every week, preferably on Sunday or the day of rest in their country of origin. Furthermore, every prisoner who has worked for one year shall be granted a rest of eight consecutive days, during which his working pay shall be paid him.

The working pay due to prisoners of war shall be fixed in accordance with the provisions of Article 62 of the present Convention.

The prisoners of war have the right to posess pocket money20.

The Detaining Power may determine the maximum amount of money that prisoners may have in their possession. Any amount in excess shall be placed to the account of prisoners of war. If prisoners of war are permitted to offer services outside the camp against payment in cash, such payments shall be placed to the accounts of the prisoners concerned.

Prisoners of war have the right to possess certain sums of money. These sums come:

1. From monthly advance payment provided by the Detaining power in accordance with the grade of the prisoner.

2. From the sums prisoners have had with them in the moment when they got into the authority of the enemy.

3. From additional payment sent by the state to which they belong.

4. From working payments from the authorities of the Detaining state.

5. From the sums prisoners shall receive, individually or collectively, from their relatives or different charity societies21.

The Detaining Power shall grant all prisoners of war a monthly advance of pay, the amount of which shall be fixed by conversion, into the currency of the said Power, of the following amounts:

Category I: Prisoners ranking below sergeant: eight Swiss francs.

Category II: Sergeants and other non–commissioned officers, or prisoners of equivalent rank: twelve Swiss francs.

Category III: Warrant officers and commissioned officers below the rank of major or prisoners of equivalent rank: fifty Swiss francs.

Category IV: Majors, lieutenant–colonels, colonels or prisoners of equivalent rank: sixty Swiss francs.

Category V: General officers or prisoners of equivalent rank: seventy–five Swiss francs22.

However, the Parties to the conflict concerned may by special agreement modify the amount of advances of pay due to prisoners of the preceding categories.

The Detaining Power shall accept for distribution as supplementary pay to prisoners of war sums which the Power on which the prisoners depend may forward to them.

Prisoners of war shall be permitted to receive remittances of money addressed to them individually or collectively.

Every prisoner of war shall have at his disposal the credit balance of his account. Prisoners of war may also have payments made abroad. In this case payments shall be given priority.

Also, the Detaining Power shall hold an account for each prisoner of war, showing the amounts due to the prisoner or received by him or the sums of money prisoners use.

Every item entered in the account of a prisoner of war shall be countersigned by him, or by the prisoners’ representative acting on his behalf.

On the termination of captivity, through the release of a prisoner of war or his repatriation, the Detaining Power shall give him a statement, signed by an authorized officer of that Power, showing the credit balance23.

Immediately upon capture, or not more than one week after arrival at a camp every prisoner of war shall be enabled to write direct to his family, on the one hand, and to the Central Prisoners of War Agency, on the other hand, informing of his capture, address and state of health. The said cards shall be forwarded as rapidly as possible.

Prisoners of war shall be allowed to send and receive letters. In case is it is impossible for them to send and receive news to and from their relatives due to a too long distance or because of the postal route, they have the right to send telegrams.

Alongside with letters, prisoners of war shall be allowed to receive individual parcels or collective shipments containing, in particular, foodstuffs, clothing, medical supplies and articles of a religious, educational or recreational character which may meet their needs.

As refers to the possibility of the authorities to verify the contents of the correspondence of the prisoners of war, article 76 of the 3rd Convention provides: „The censoring of correspondence addressed to prisoners of war or despatched by them shall be done as quickly as possible. Mail shall be censored only by the despatching State and the receiving State, and once only by each24.

Prisoners of war shall have the right to make known to the military authorities in whose power they are. They shall also have the unrestricted right to apply to the representatives of the Protecting Powers. These requests and complaints shall not be limited nor considered to be a part of the correspondence. In all places where there are prisoners of war, except in those where there are officers, the prisoners shall freely elect by secret ballot, every six months, prisoners’ representatives who will represent them before the military authorities, Detaining power, the International Committee of the Red Cross and any other organization which may assist them.

In camps for officers, the senior officer among the prisoners of war shall be recognized as the camp prisoners’ representative. He shall be assisted by one or more advisers.

The escape of a prisoner of war shall be deemed to have succeeded when he has joined the armed forces of the Power on which he depends, or those of an allied Power, he has left the enemy territory or if he has joined a ship flying the flag of the Power on which he depends. In the 3rd Convention an escape or an attempt to escape is regulated as a permission that is granted to the Detaining power to use weapons against those which are trying to escape. This constitutes an extreme measure, that will always be preceded by the notifications as they are demanded by the circumstances25.

In every armed conflict or situation of internal violence prisoners are extremely vulnerable, due to the fact that they are frequently considered enemies to those who captured them and, as a consequence, are exposed to the acts of vengeance. That is why it paramount that prisoners should benefit from the intervention of a neutral and independent organism, who has as a mission to ensure that they receive a humanly treatment, that they are kept in corresponding conditions and that they have the possibility to exchange the information with their family. This mission has been performed since 1915 by the International Committee of the Red Cross, engaged in visiting prisoners in the conditions of armed conflicts and internal upheaval.

The duration, frequency and succession of visits is in the competence of ICRC and not of the Detaining powers. After the visit the group works out a written report, which recapitulates the conditions of detention and the treatment applied to the detained and proposes, if necessary, the coercive measures. This report is confidential. The experience demonstrates that it is necessary to communicate directly with the responsible authorities, by means of a discrete dialogue, protected from the media critics shooting range26.

From this point of view, we have to remember once again that for the ICRC confidentiality itself is not an objective, but an essential condition of dialogue and trust from the detaining authorities. Therefore, ICRC is keeping the possibility to renounce the policy of discretion at any time, and to make its concerns public, in case if the violations that have been discovered are repeated and in accordance with the measure in which the claims forwarded to the authorities have no effect27.

Article 3, common to the four Geneva Conventions, provides that ICRC can visit the persons detained in the course of non–international armed conflicts or civil wars. Additionally, in accordance with the Statute of the Movement, ICRC makes all efforts in order to have access to the persons detained in connection with internal upheaval and violence28.

3. Disciplinary sanctions and penal responsibility of the prisoner. A prisoner of war must know the laws, regulations and orders in force in the armed forces of the Detaining Power. The Detaining Power shall be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. However, no proceedings or punishments contrary to the provisions of Convention shall be allowed.

If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail disciplinary punishments only.

In deciding whether proceedings in respect of an offence alleged to have been committed by a prisoner of war shall be judicial or disciplinary, the Detaining Power shall ensure that the competent authorities exercise the greatest leniency and adopt, wherever possible, disciplinary rather than judicial measures.

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality, and the procedure of which does not afford the accused the rights and means of defence provided for in Article 105.

Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention. No prisoner of war may be punished more than once for the same act, or on the same charge.

The most severe disciplinary sanction applied to the prisoners of war is confinement. Another disciplinary sanctions that can be applied to the prisoners of war are as follows:

a) a fine (hypothetical sanction, if we take into consideration the weakness of financial resources of the prisoners) which shall not exceed 50 per cent of the advances of pay and working pay of the prisoner;

b) Discontinuance of privileges granted over and above the treatment provided for by the Convention;

c) Fatigue duties not exceeding two hours daily. This punishment shall not be applied to officers29.

The conditions of a confinement provided by the Convention are as follows:

i) concerning the term:

— the duration of any single punishment shall in no case exceed thirty days;

— the duration of a disciplinary sanction (if one of them exceeds 10 days) must be separated by a period of at least 3 days;

ii) concerning the restrictions:

— as an aggravating circumstance, the prisoners of war in confinement can bear food restrictions permitted in the army of the Detaining power;

— the application of such punishment depends on the health of the prisoner that is being punished.

iii) concerning the place of detention:

— the place of detention must correspond to the necessities of hygiene. Prisoners of war shall not in any case be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) to undergo disciplinary punishment therein;

— the prisoners shall be obliged to keep the place of detention clean; they shall be allowed to exercise and to stay in the open air at least two hours daily, to read and write, to send and receive letters;

— parcels that arrive will not be handled until the execution of punishment; if they contain perishable goods, those will be handed over to the infirmary30.

Disciplinary punishments cannot be pronounced by another person that an officer empowered with disciplinary powers, with the quality of camp’s or division’s commander, or the officer that substitutes him31.

The prisoners can be released on parole, in so far as is allowed by the laws of the Power on which they depend, on condition that they will not use arms in the course of this war anymore. The prisoner has that right to accept or decline this offer. Once accepted, it becomes mandatory32.

Some articles of the Convention refer to the procedure that must be followed in case if the prisoners of war are judged for the facts that are contrary to the norms of international law or laws, regulations, orders of the Detaining power, and warranties that must ensure an equitable justice.

Thus, in the case when a judicial procedure is opened, the Detaining power shall warn the Protecting power as soon as possible, transmitting the following indications: the actual situation and rank of the prisoner, the place where he is situated and applicable legal provisions. If it is possible, the Protecting power shall be informed about the tribunal that will proceed and about the date the procedure starts. Every prisoner shall have the warranties of the right for defense. He will be provided with an interpreter and informed in due time about his rights. The representatives of the Protecting power shall have the right to assist the procedure33.

If security issues impose that the procedure should be behind the closed doors, the Protecting power shall be informed concerning the development of the process. The prisoner has the right of appeal from any sentence pronounced upon him. In establishing the punishment it will be taken into consideration that the accused is not a citizen of the Detaining state and is not connected with it by means of an oath of faith and that he is under its authority due to circumstances that do not depend upon his will.

Death sentence can be pronounced only in case if the prisoner’s guilt is confirmed in the commission of a crime for which the legislation of the Detaining power provides this kind of punishment34.

All judicial proceedings must be performed on the basis of legal provisions and must strictly respect judicial warranties established by the international humanitarian law in favor of the accused.

Prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention35.

4. Liberation and repatriation. Repatriation and accommodation in neutral countries in the time of hostilities. Upon the outbreak of hostilities, Mixed Medical Commissions shall be appointed in every belligerent party, consisting of three members from which two from the belligerent parties and one from the neutral state. These commissions are entitled to examine sick and wounded prisoners of war, and to make all appropriate decisions regarding them, including the repatriation and the accommodation in a neutral state.

Persons who were badly wounded or fell ill can be repatriated in the course of the hostilities, as long as they will be able to support the transportation or hospitalization in a neutral state, in order to provide a better treatment for them or to liberate the Detaining party from this assignment. The criterion of direct repatriation or hospitalization in neutral states is one of their physical or mental disability. Thus, it is provided that the following persons can be directly repatriated in the time of hostilities:

— Incurably wounded and sick;

— Wounded and sick who, according to medical opinion, are not likely to recover within one year;

— Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.

Also, the direct repatriation or hospitalization in a neutral state can be provided to the prisoners of war, victims of certain accidents, as well as those who were proposed to the mixt medical commissions by a doctor, their compatriot, their representative, the authority on which they depend or an institution recognized by this authority, who attends to the prisoners. All the costs of repatriation or transportation in a neutral state will be supported, starting with the frontier of the Detaining state, from whose power these prisoners depend.

This form has been practiced to a great extent in the time of the Second World War, and many thousands of wounded, sick and members of hospital personnel benefited from it. The most numerous were exchanges between Great Britain and Italy (at the 8th of April 1942 there were exchanged 129 English prisoners with 917 Italians; at 21st March 1943, 800 English prisoners with 800 Italians; at 16th of April, 19th of April and 8th of March 1943 — 4834; at the 2nd of June 1943 — 3117); between Great Britain and Germany (at 19th of October 1943, 4100 English prisoners vs. 3850 German prisoners; at 26th of October 1943 — 1032 English prisoners to 1060 German prisoners; at 17th of May 1944 — 800 to 800); between France and Germany (at the 1st of November 1944 — 875 French prisoners to 863 German prisoners).

The Convention from 1929 did not provide the possibility of prisoners’ liberation on parole that they shall not anymore serve in the armed forces, thought this way was frequently used in the wars from the end of 19th century and the beginning of 20th century. The Convention from 1949 revived this practice, providing in article 21, par.2 that in so far as is allowed by the laws of the Power on which prisoners depend and in cases where this may contribute to the improvement of their state of health, prisoners of war may be partially or wholly released on parole or promise36.

The rest of the prisoners shall be liberated and repatriated in their states immediately after the termination of active hostilities. This rule is a novation of the Convention from 1949, because the Convention from 1929 provided the liberation of the prisoners after the conclusion of peace.

This innovation is motivated by the fact that the term between the cease of active hostilities and the conclusion of peace is very long and this would constitute an unjust prolongation of the state of captivity. There have been situations when peace was not concluded. The interpretation of the expression „without delay after the cessation of active hostilities“ gave way to a number of controversies. There are opinions that a premature liberation of prisoners could amplify the potential of the enemy, encouraging him to renew the hostilities (this was the case when India liberated 93 000 of Pakistan prisoners after the hostilities from December 1971), and others consider that unjust prolongation in unacceptable, proposing terms that vary from 6 months to 2 years after the cessation of hostilities37.

The prisoners captures in the period of armed conflict between Iraq and Iran have been liberated and repatriated only after 8 years, those from the English–Moroccan conflict — after 11 years that passed since the cease of hostilities — this means, in 1987, — as well as those concerning the conflict between Ethiopia and Somali38.

The liberation of war prisoners at the end of the Second World War was performed this way: USA liberated the Axis prisoners in August 1947; great Britain — in July 1948; France, Poland and Czechoslovakia — in December 1948; USSR — in May 1950 (a number of 12 000 prisoners have been detained even more).

In the conflicts between Korea, Vietnam and Israel–Arab some badly wounded and sick prisoners have been released in the time of hostilities; Pakistan prisoners detained in India have been released between 28 August 1973 and 30 April 1974. The prisoners can refuse to be repatriated — in the Gulf war about 13 000 of Iraq prisoners took refuge in Saudi Arabia and refused to be repatriated39.

At the liberation, prisoners shall be permitted to take with them personal objects, including money and precious items that have been detained at the beginning of capture. Those who are under criminal prosecution or proceedings or are sentences for a crime can be detained until the conclusion of the proceedings or until the expiry of the sentence. Those who have been repatriated cannot take part in the active military service.

Any unjustified delay in the repatriation of prisoners of war performed intentionally is considered a grave violation of international humanitarian law40.

Prisoners of war that died durinf the captivity, shall be buried in a honourable way. Their graves shall bear every necessary mark, death certificates shall be sent to the Protecting power and Central agency of infromation concerning prisoners of war. Wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by the legislation of their country of origin.

Information concerning burials and graves must be registered at the Grave service of the Detaining power, in order to be sent to the country of origin. The state on whose territory the graves are situated is obliged to maintain them and to register every subsequent transfer of remnants41.

At the beginning of the conflict in every case of war occupation each belligerent part and neutral and non–belligerent powers which accepted prisoners of war on their territory shall open an official Bureau of information concerning the prisoners of war which are under its authority. These Bureaus shall be informed by the authorities about every data referring to the place of birth, Protecting power, father’s last name and mother’s maiden name, name and address of the person which has to be informed, rank, identification number, place where the prisoner is situated. They shall also be informed concerning eventual transfer, liberation, repatriation, escape, hospitalization, death, health etc. On this basis there shall be collected personal records of all prisoners, which shall be communicated monthly to the interested powers, and those referring to the identity — to the families, for the correspondence, by the Protecting power and by the Central Prisoners of War Agency. After the conclusion of peace, personal records shall be transmitted to the government on which the prisoners depend.

The Bureau shall collect all personal objects, values, correspondence, currencies and identification marks left by the escaped or deceased prisoners and shall transmit them to the interested states42.

The responsibility for the treatment applied to the prisoners and for the application of the Convention belongs to the Detaining party. Nevertheless, for a uniform application of the provisions of the Convention and for the provision of an adequate regime to the prisoners, the states have instituted special mechanisms of protection and control, among which are: Protecting power, substitute of protecting power, representative of prisoners of war, the trustee of the prisoners of war, international humanitarian organizations.

The institution of Protecting power was provided for the first time in the second half of 19th century, in the time of French–Prussian war, and this role was performed by Great Britain for the French prisoners from Germany and by USA, Russia and Switzerland for the Prussian, Bavarian, Wurttemberg, Saxon and etc. prisoners detained in France. Later the practice started to generalize, and in the time of First World War it was already universal.

As a consequence of the generalization of this practice, in the Convention from 1929 the institute of Protecting power was provided by 2 articles — 86 and 87 — and in the Convention from 1949 it was probided by 13 articles.

According to this latter Convention, the role of Protecting power is to protect the interests of the parties to the conflict and to control the application of the Convention through its diplomatic and consular agencies or by any other persons chosen from its residences or from those who belong to the neutral powers and are admitted by the Detaining power. The representatives of protecting powers are entitled to visit the camps of detainment and to communicate with the prisoners without witnesses.

To avoid situations similar to the one which took place in the time of the Second World War, when Germany had signed with the French Government from Vichy, on the 16th of November 1940, a protocol substituting the intervention of protecting power with a pseudo–national cotrol, it was provided by ate article 10, par.5 of the Convention that „no derogation from the preceding provisions shall be made by special agreements between Powers one of which is restricted, even temporarily, in its freedom to negotiate with the other Power or its allies by reason of military events, more particularly where the whole, or a substantial part, of the territory of the said Power is occupied“.

In the period after the war the institution of Protecting power had not functioned, and this fact means that the statute of prisoners of war has been seriously breached. This especially refers to a prolongation of detention as the one which took place in case of the war between Iran and Iraq, and constituted about 10 years43.

The Convention also refers to situation such as the one when parties to a conflict cannot agree concerning a protecting power. Thus, on the basis of article 10, par.1 „The High Contracting Parties may at any time agree to entrust to an organization which offers all guarantees of impartiality and efficacy the duties incumbent on the Protecting Powers by virtue of the present Convention.“ In case if the prisoners do not benefit or have ceased to benefit, not taking in consideration the cause, from the services of the Protecting power, the Detaining power can adress a neutral state or another organism to perform this mission. It is also possible to ask for the services of the International Committee of the Red Cross, who carries out humanitarian missions provided by the Convention — as the practice of recent years confirms, the ICRC had always been where it was needed most44.

1 Калугин В.Ю. Курс международного гуманитарного права. Минск: Тесей, 2006, с. 184.

2 Cloşcă I, Suceavă I. Dreptul Internaţional Umanitar. Bucureşti: Şamsa, 1992, p. 322.

3 Codul penal al Republicii Moldova, art 391.

4 Convenţia a III–a — art. 15

5 Cloşcă I, Suceavă I. Op. cit. — p. 323.

6 RADU V. Actualităţi privind statutul prizonierilor de război. Închisorile de la Guantanamo şi Abu Ghraib.–privind–statutul–prizonierilor–de–razboi–inchisorile–de–la–guantanamo–si–abu–ghraib/

7 Lupulescu N. Drept umanitar. Bucureşti: C.H.BECK, 2010, p. 155–156.

8 Convenţia a III–a — art. 38

9 Cloşcă I, Suceavă I. Op. cit. — p. 324.

10 CG III, art. 25, par.4.

11 Comentariu Convenţii Geneva.

12 Practica cutumiara

13 Ori de cîte ori consideraţiile de ordin militar o vor îngădiu, lagărele de prizonieri de război vor fi semnalizate în timpul zilei prin literele PG şi PW, aşezate astfel ca să fie văzute în mod distinct de la înălţime; Puterile interesate vor putea conveni, totuşi, asupra altui mijloc de semnalizare. Numai lagărele de rpizonieri de război vor putea fi semnalizate în acest mod.

14 Cloşcă I, Suceavă I. Op. cit. — p. 324.

15 Lupulescu N. Op. cit. — p. 156.

16 Lupulescu N. Op. cit. — p. 156.

17 Convenţia a III–a — art.49–57.

18 Convenţia a III–a — art.51

19 Convenţia a III–a — art.53

20 Калугин В.Ю. Op. cit. — с. 187.

21 Cloşcă I, Suceavă I Op. cit. — p. 326.

22 Convenţia a III–a — art.60

23 Convenţia a III–a — art.65

24 Convenţia a III–a — art.76

25 Lupulescu N. Op. cit. — p. 156.

26 Idem, p. 158.

27 Lupulescu N. Op. cit. — p. 159.

28 Ibidem.

29 Convenţia a III–a — art.89

30 Cloşcă I, Suceavă I. Op. cit. — p. 328–328

31 Калугин В.Ю. Курс международного гуманитарного права. Минск: Тесей, 2006, с. 188.

32 Cloşcă I, Suceavă I. Op. cit. — p. 328–328.

33 Idem, p. 329.

34 Калугин В.Ю. Op. cit. — с. 189.

35 Convenţia a III–a — art. 85

36 Cloşcă I, Suceavă I. Op. cit. — p. 331.

37 Idem, p. 331.

38 Калугин В.Ю. Op. cit. — с. 190.

39 Radu V. Actualităţi privind statutul prizonierilor de război. Închisorile de la Guantanamo şi Abu Ghraib.–privind–statutul–prizonierilor–de–razboi–inchisorile–de–la–guantanamo–si–abu–ghraib/

40 PA I,art. 85, alin. 4 (b)

41 Lupulescu N. Op. cit. — p. 157.

42 Cloşcă I, Suceavă I. Op. cit. — p. 332.

43 Radu V. Actualităţi privind statutul prizonierilor de război. Închisorile de la Guantanamo şi Abu Ghraib.–privind–statutul–prizonierilor–de–razboi–inchisorile–de–la–guantanamo–si–abu–ghraib/

44 Cloşcă I, Suceavă I. Op. cit. — p. 333.

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