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Here are some hypothetical situations where respecting POW rights interferes with achieving a military objective:

  1. A mechanized column has a time-sensitive objective to capture a town. The column came across an unsuspecting enemy, managed to ambush them and most of them surrendered. The column commander can't simultaneously organize POWs transfer to the rear and capture the town. What shall he do according to the US military law?
  2. A squad captured an enemy combatant. Afterwards they came under fire and it is too risky to withdraw with the prisoner. Is it legal to release him? Shoot him?
  3. Suppose that guerilla forces want to obey the laws of war. They capture a government soldier but they have no ability to provide him "human treatment" (they don't enjoy basic amenities themselves). What should they do?
  4. A Special Operations fireteam is on a stealthy mission in the enemy rear. They capture an enemy soldier. They can't release him as he will raise the alarm, they can't remain in hiding with him. Are they allowed to kill him?
Andrey Godyaev
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2 Answers2

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Can military necessity override POW rights?

NO. The Geneva Conventions Act 1957 provides prisoners of war with certain fundamental guarantees for humane treatment at Article 4 of Part 2 of Schedule 6:

1 All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honour and convictions and religious practices. They shall in all circumstances be treated humanely, without any adverse distinction. It is prohibited to order that there shall be no survivors.

2 Without prejudice to the generality of the foregoing, the following acts against the persons referred to in paragraph 1 are and shall remain prohibited at any time and in any place whatsoever:

  • (a) violence to the life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;

  • (b) collective punishments;

  • (c) taking of hostages;

  • (d) acts of terrorism;

  • (e) outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;

  • (f) slavery and the slave trade in all their forms;

  • (g) pillage;

  • (h) threats to commit any of the foregoing acts

...

4 If it is decided to release persons deprived of their liberty, necessary measures to ensure their safety shall be taken by those so deciding.

Q1 What shall he do?

  • The humane and fair treatment of prisoners of war takes primacy, so if the commander cannot complete his mission without properly securing the prisoners it should be aborted until he can.

Q2 Is it legal to release him? Shoot him?

  • There is nothing to prevent a prisoner being released (para 4) but shooting him will probably amount to murder and may well be a war crime.

Q3 What should they do?

  • As combatants, they should guarantee the prisoner be treated humanely and without distinction - a lack of amenities does not necessarily equate to inhumane treatment, although it may depend on the particular circumstances.

Q4 Are they allowed to kill him?

  • No, the prisoner's liberty has been restricted so the fireteam must treat him humanely, which may mean aborting the mission if they cannot safely release him - killing him will probably amount to murder and may well be a war crime.

I assume the has similar, if not identical provisions

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The "rules of engagement"/protocols for the treatment of war prisoners are spelled out in the Geneva Conventions of 1949-1950 by the United Nations. There are a total of 145 rules covering the treatment of POW's and this is the link - http://hrlibrary.umn.edu/instree/y3gctpw.htm

To answer the question, however; "probably not". The scenarios given don't constitute "necessity" in my eyes. The commander wouldn't have time to be marching along, capture some soldiers, then fight again - it doesn't make any sense. Your questions are long, very vague, and would take a very long time to answer so I suggest that you click the link and read up on the Geneva Conventions. I was a Medic in the USAF and fell under special rules for medical personnel. But your question is either purposefully vague, as a "test" or it's just THAT WAY. Go to the link and read up on the topic. You'll find your answers in that document.

Pronounless Texan
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