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Defection and Prisoner of War Status: Protection under International Humanitarian Law for Those Who Join the Enemy?
Published online by Cambridge University Press: 03 August 2020
Abstract
This article explores the issue of whether individuals who join enemy forces during international armed conflicts are entitled to prisoner of war status upon capture. It presents the long-running debate on the topic through a study of divided scholarly opinions and judicial decisions. An original analysis of the competing theories is conducted on the basis of available state practice, treaty interpretation methodology, and novel critical arguments and proposals. The article seeks to challenge the value attributed to mainstream academic opinions and judicial precedents and open the debate in an area of international humanitarian law that is still under development.
Résumé
Cet article explore la question de savoir si les individus qui se joignent aux forces ennemies pendant les conflits armés internationaux ont droit au statut de prisonnier de guerre lors de leur capture. Le débat de longue date à ce sujet est présenté en vertu d’une étude d’opinions savantes et de décisions judiciaires divisées en la matière. Une analyse originale des théories concurrentes est effectuée sur la base de la pratique des États, de la méthodologie d’interprétation des traités, et de nouvelles critiques et propositions. L’article cherche à remettre en question la valeur attribuée à la jurisprudence et aux opinions académiques dominantes, ainsi qu’à ouvrir le débat dans un domaine du droit international humanitaire toujours en développement.
Keywords
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- Articles
- Information
- Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 57 , November 2020 , pp. 41 - 88
- Copyright
- © The Canadian Yearbook of International Law/Annuaire canadien de droit international 2020
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45 Howard S Levie, “Prisoners of War in International Armed Conflicts” (1977) 59 Intl L Stud 81 (affirming that a captured defector “is not entitled to prisoner-of war status” and referencing the writings of Flory, Oppenheim, and Draper, as well as the British manual, as sources).
46 Rupa C Hingorani, “Who Are the Prisoners of War?” (1980) 9 Australian YB Intl L 276 at 279–80 (considering indisputable that traitors serving with the enemy are not treated as POWs).
47 Yoram Dinstein, “Refugees and the Law of Armed Conflicts” (1982) 12 Israel YB Human Rights 94 at 98 (affirming that “when a person is not merely a foreigner … but also owes allegiance to the captor State … he is an unlawful combatant and cannot invoke the status of a prisoner of war”).
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49 Green, Leslie C, The Contemporary Law of Armed Conflict (Manchester: Manchester University Press, 2008)Google Scholar at 145 (affirming that the national authority might decide to consider deserters caught fighting for the enemy not as combatants and POWs but as “members of its own forces liable to trial for treason” in accordance with national law, and mentioning the fact that “members of the Indian national army who were captured by or surrendered to the British were tried by Indian military courts for waging war against the crown contrary to the Indian penal code”). On this subject, see Mason, Phil, A Matter of Honour: An Account of the Indian Army, Its Officers and Men (London: Jonathan Cape, 1974)Google Scholar at 522 (affirming that for political reasons only three individuals faced trial and their sentence was remitted).
50 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict, 3rd ed (Cambridge: Cambridge University Press, 2016)CrossRefGoogle Scholar at 55–56 (affirming that, apart from the express conditions set out in the chapeau and text of Article 4 of Geneva Convention III, the lack of a duty of allegiance to the detaining power is an additional condition for granting POW status, and referencing as the source of this theory the Koi case, infra note 53).
51 Afsah, Ebrahim, “Deserters” in Wolfrum, Rüdiger, ed, Max Planck Encyclopedia of Public International Law, vol 3 (Oxford: Oxford University Press, 2012)Google Scholar 50 at 52, para 14 (affirming that “[t]he traditional rule holds that lawful combatants cannot fight against the country to which they owe allegiance. Consequently … [they] do not enjoy the protections accorded by international law … [and instead] are liable to punishment under municipal law” and referring as a source to art 48 of the Lieber Code, infra note 120, which affirms that “deserters from the American army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture, or being delivered up to the American army; and if a deserter from the enemy, having taken service in the army of the United States, is captured by the enemy, and punished by them with death or otherwise, it is not a breach against the law and usages of war, requiring redress or retaliation”).
52 Oppenheim, Lassa, International Law: A Treatise, 3rd ed (London: Longmans, Green and Company, 1921)Google Scholar at 115, para 86.
53 Public Prosecutor (Malaysia) v Koi (1967), [1968] AC 829, 42 ILR 441 (PC) [Koi cited to ILR].
54 Ibid at 442.
55 Ibid at 449.
56 Ibid.
57 Ibid.
58 Ibid.
59 It should be noted that the only other reference to “commonly accepted international law” in the judgment relies, incidentally, on another reference to Oppenheim’s opinion cited in one of the lower court judgments in respect of the accused Lee Hoo Boon: ibid at 448, citing Lee Hoo Boon v Public Prosecutor, [1966] 2 MLJ 167 (Fed Ct Malaysia).
60 René-Jean Wilhelm, “Peut-on modifier le statut des prisonniers de guerre? (suite et fin)” (1953) 35:417 Intl Rev Red Cross 681 at 685 (affirming that denying POW status to individuals holding the detaining power’s nationality was “criticable et hâtive” since the term enemy in art 4 of Geneva Convention III covers every combatant of the adversary irrespective of their nationality).
61 David, supra note 18 at 502, para 2325 (affirming that denying POW status to a traitor is hardly compatible with art 4 of Geneva Convention III and arts 43 and 44 of Additional Protocol I, which, according to him “ne réservent nullement le statut des combattants prisonniers tenus par un devoir d’allégeance envers la Puissance détentrice”). Additional Protocol I to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) [Additional Protocol I].
62 Solis, Gary D, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2010)CrossRefGoogle Scholar at 189, 197–98 (affirming that the additional requirement of non-allegiance for POW status argued by some scholars is “not cited in texts as a precondition for POW status … [and it is] not state practice,” and that “[c]itizenship is not the point of lawful combatancy; membership in an army of a party to the conflict is the issue”).
63 Debuf, Els, Captured in War: Lawful Internment in Armed Conflict (Paris: Pedone and Hart, 2013)Google Scholar at 223 (concluding that “as long as no rule of treaty or customary international law establishes the contrary, the text of Article 4 … and the object and purpose of the Third Geneva Convention do not allow for any individual to be excluded from the personal scope of application of that Convention on the basis of his or her nationality alone”).
64 Cumin, David, Le droit de la guerre: Traité sur l’emploi de la force armée en droit international, vol 2 (Paris: L’Harmattan, 2015)Google Scholar at 621 (affirming that “[l]e jus in bello, lui, ne connaît pas de ‘Traîtres’; il récuse toute discrimination à raison de la nationalité” and that POW status covers all individuals belonging to the categories included in Geneva Convention III since “l’uniforme couvre la nationalité”).
65 Verhoeven, Sten & Sagon, Hilde, “Protected Persons in International Humanitarian Law” in Wouters, Jan & de Man, Philip, eds, Armed Conflicts and the Law (Antwerp: Intersentia, 2016)Google Scholar 367 at 382, n 110 (referring to the denial theory as an unjust exception to POW status, since “there is no reason under IHL to deny prisoner of war status to such a combatant since due to his incorporation into the armed forces he is a lawful combatant”).
66 Crawford, Emily, The Treatment of Combatants and Insurgents under the Law of Armed Conflict (Oxford: Oxford University Press, 2010)CrossRefGoogle Scholar at 60 (noting the impossibility of intermediate statuses under the Geneva Convention regime and affirming that “[t]he adoption of the Geneva Conventions must be seen as superseding any interpretation of the law of armed conflict, which sanctions stripping any person detained in relation to an armed conflict of any sort of legal protection or status”).
67 Niebergall-Lackner, Heike Status and Treatment of Deserters in International Armed Conflicts (Leiden: Brill-Nijhoff, 2016)CrossRefGoogle Scholar at 146 (arguing that “if states have the right to recruit enemy deserters to the benefit of their own war efforts … they should, in turn, be obliged to respect the adverse party’s right to do the same, and recognize a defector’s combatant and eventual prisoner of war status”).
68 Ex Parte Quirin, 317 US 1 at 37–38 (1942).
69 In re Territo, 156 F2d 142 at 145 (9th Cir 1946).
70 US Department of Justice, Office of the Deputy Assistant Attorney General, Memorandum for Daniel J Bryant, Assistant Attorney General, Office of Legislative Affairs Re: Applicability of 18 USC § 4001(a) to Military Detention of United States Citizens (Washington, DC: US Department of Justice, 2002)Google Scholar.
71 Matthew Dollan, “American-Born Taliban Fighter Jailed in Norfolk,” Virginian Pilot (6 April 2002).
72 Hamdi v Rumsfeld, 542 US 507 (2004).
73 Levie, supra note 45 at 75–76 (affirming the detaining state does not lose its capacity and right to charge an individual for treason, nor does the individual lose his or her entitlement to protection as a POW “at least up to and during the trial … in accordance with the guarantees contained in the relevant provisions of the Convention”).
74 Wilhelm, supra note 60 at 686 (affirming that the application of Article 85 of Geneva Convention III “n’empêche nullement d’ailleurs l’État détenteur de punir son national; elle a simplement pour résultat de conférer à celui-ci les garanties d’ordre judiciaires et pénitentiaires prévues par la Convention comme un minimum admis par les nations civilisées”).
75 Yutaka Arai-Takahashi, “Legal Questions Concerning Afghanistan” (2002) 5 Yb Intl Human L 88 (concluding that even one’s own nationals should not be denied POW status, but adding “while awaiting possible trials for treason;” and suggesting the application of the same reasoning followed by the ICTY in the allegiance test to interpret the meaning of the requirement of falling into the power of the enemy under Article 4 of Geneva Convention III. In that sense allegiance would determine who is the “real” enemy “so that even nationals of a detaining power should not be excluded from POW status under the third Geneva convention”).
76 David, supra note 18 at 505, para 2334, 502, paras 2326–27 (affirming that art 4 of Geneva Convention IV, supra note 21, and arts 43 and 44 of Additional Protocol I, supra note 61, “ne font aucune discrimination entre les personnes capturées sur la base de la nationalité,” but accepting that, in principle, Geneva Convention III does not prevent the detaining power from prosecuting a traitor, depending on the reasons the individual might have to engage with enemy forces — that is, “si le combat de celles-ci est conforme au jus contra bellum, le traitre ne devrait pas être puni pour s’être engagé du ‘bon côté’; dans le cas inverse la punition serait justifiée”).
77 Tse Ka Ho, “The Relevancy of Nationality to the Right to Prisoner of War Status” (2009) 8 Chinese J Intl L 395 at 399, para 12 (arguing the error of the Privy Council in Koi was to consider POW status and liability for treason as mutually exclusive concepts since the act of treason is independent of the combatant’s duties in the battlefield, which only cover lawful acts of warfare with immunity (e.g. murder, assault, and so on).
78 Debuf, supra note 63 at 223 (affirming that “[p]risoners of war who have committed the crime of treason against the power in whose hands they have fallen may be tried and punished for that crime and may be detained during trial or imprisoned upon conviction”).
79 Niebergall-Lackner, supra note 67 (clarifying that upon the end of the armed conflict and the release of prisoners “the home country can prosecute defectors in ordinary criminal trials for … offences applicable under the national military laws of the country”).
80 Watts, Sean, “Who Is a Prisoner of War?” in Clapham, Andrew, Gaeta, Paola & Sassòli, Marco, eds, The 1949 Geneva Conventions: A Commentary (Oxford: Oxford University Press, 2015)Google Scholar 889 at 890 (affirming that “[s]tates typically reserved POW status as a matter of custom, and later treaty law, for members of the opposing state’s regular armed forces”).
81 Pictet, Jean S, ed, Commentaries to the 1949 Geneva Conventions (Geneva: International Committee of the Red Cross [ICRC], 1958)Google Scholar at 11 (arguing that during the drafting process of Geneva Convention III, “the Convention was neither a codification of measures which already existed in various instruments, nor a complete collection of all the regulations applicable to prisoners of war”).
82 Koi, supra note 53 at 449.
83 Hingorani, supra note 46 at 27 (referencing as evidence the writings of Oppenheim and Hyde and affirming that the exception to POW status based on allegiance to the captor is “considered to be the customary rule of international law based on national prescriptions”).
84 Sassòli, Marco, Bouvier, Antoine & Quintin, Anne, How Does Law Protect in War, 3rd ed, vol 1 (Geneva: ICRC, 2011)Google Scholar ch 6 at 1 (affirming that “[i]t is often considered that customary law allows a detaining power to deny its own nationals prisoner-of-war status, even if they fall into its hands as members of enemy armed forces”).
85 It is necessary that captors and captives fight in rival formations to each other and share the same nationality/allegiance; that captives fall into the power of enemy troops while an international armed conflict (IAC) still exists (in order to distinguish it from the post-war trials against collaborators); and that denial of POW status be based on the fact of shared nationality/allegiance and not on other bases (such as espionage, the failure to comply with POW requirements, and so on).
86 Michael Wood, International Law Commission, Second Report on Identification of Customary International Law, UN Doc A/CN.4/672 (22 May 2014) at para 52 (arguing that “the practice need not be unanimous (universal); but, it must be ‘extensive’ or, in other words, sufficiently widespread”).
87 Ibid at para 55 (arguing that “while the specific circumstances surrounding each act may naturally vary, ‘a core of meaning that does not change’ common to them is required: it is then that a regularity of conduct may be observed”).
88 North Sea Continental Shelf (Germany v Denmark; Germany v Netherlands), [1969] ICJ Rep 3 at para 76.
89 Tucker, Spencer C, “Battisti Cesare” in Tucker, Spencer C, ed, World War I: The Definitive Encyclopedia and Document Collection, vol 1 (Santa Barbara: ABC-CLIO, 2014)Google Scholar 215 at 215–16 (affirming that upon capture by Austro-Hungarian forces, Battisti was charged with treason and “[h]is defence that he should be considered a prisoner of war was rejected out of hand”).
90 Ballinger, Pamela, History in Exile: Memory and Identity at the Borders of the Balkans (Princeton, NJ: Princeton University Press, 2003)CrossRefGoogle Scholar at 63 (affirming that Sauro in Istria was executed by the Austro-Hungarians “in order to demonstrate to the Italian populations of its imperial lands that treason in wartime would not be tolerated”).
91 Simon P Mackenzie, “Treatment of Prisoners of War in World War II” (1994) 66 J Modern History 487 at 496.
92 Trigg, Jonathan, Hitler’s Gauls: The History of the 33rd Waffen Division Charlemagne (Stroud, UK: History Publishing Group, 2009)Google Scholar at 161.
93 Fry, supra note 32; Edward L Bimberg, “A Tale of the French Foreign Legion,” World War II Magazine, vol 12 (September 1997) at 32.
94 Cawthorne, Nigel, The Iron Cage (Lanham, MD: Garrett County Press, 2013)Google Scholar at 30 (affirming that “the Soviets were not concerned about the conditions of imprisonment of their own men either. Stalin considered any of its people who had been taken prisoner by the Germans as traitors. In fact, they did not exist. All true Soviet citizens would gladly fight to their last drop of blood for socialism”). 1929 Geneva Convention, supra note 19.
95 Cawthorne, supra note 94 at 30.
96 Mark Elliot, “The United States and Forced Repatriation of Soviet Citizens, 1944–47” (1973) 88 Political Science Q 253 at 258.
97 Ibid at 260.
98 Ibid at 253 (referring to an incident on 29 June 1945, concerning 154 Russian prisoners at Fort Dix, New Jersey, who attempted mass suicide on the day of their deportation. The situation was brought under control by the police through the use of tear gas only after three prisoners had succeeded in their attempts).
99 Polian, supra note 10 at 126 (explaining how the Soviet position regarding POWs was so extreme that even captured or surrendered POWs were suspected, investigated, and many times unjustly convicted for betrayals).
100 This was the name usually given to those fighting for the Russian Liberation Army and later on for the armed forces of the Committee for the Liberation of the Peoples of Russia. In general terms, these groups were military formations composed mainly of Russians, fighting under German command, and led by Andrey Vlasov, a former general of the Red Army who defected and tried to unite Russian opponents of communism. See Andreyev, Catherine, Vlasov and the Russian Liberation Movement: Soviet Reality and Emigré Theories (Cambridge: Cambridge University Press, 1990)Google Scholar.
101 Polian, supra note 10 at 131.
102 Fisheries Case (United Kingdom v Norway), [1951] ICJ Rep 116 at 131; Corfu Channel Case (United Kingdom of Great Britain and Northern Ireland v Albania), [1949] ICJ Rep 4 at 74; ibid (Dissenting Opinion of Judge Krylov at 128); ibid (Dissenting Opinion of Dr Ečer); Fisheries Jurisdiction (Federal Republic of Germany v Iceland), [1974] ICJ Rep 175 at 212 (Declaration of Judge Nagendra Singh); Arrest Warrant Case (Democratic Republic of the Congo v Belgium), [2002] ICJ Rep 3 at 117 (Separate Opinion of Judge Bula-Bula).
103 Asylum Case (Colombia v Peru), [1950] ICJ Rep 266 at 277 (finding that although a large number of cases had been presented to the court, it had not been shown whether they evidenced invocation of the alleged customary rule as a right “and not merely for reasons of political expediency”).
104 Ibid.
105 Ibid.
106 Trigg, supra note 92 at 161.
107 Elliot, supra note 96 at 253.
108 Rosas, Allan, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts (Helsinki: Suomalainen Tiedeakatemia, 1976)Google Scholar at 383 (referring to The Case of Æneas Macdonald of 1747, in which a British court established that “subjects taken in arms against their lawful prince, are not considered as prisoners of war, but as rebels; and are liable to the punishments ordinarily inflicted on rebels”). The Case of Æneas Macdonald, reprinted in Foster, Michael, ed, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry, 3rd ed (London: E & R Brooke, 1792)Google Scholar 59.
109 William R. Lindsey, “Treatment of American Prisoners of War during the Revolution” (1973) 22:1 Emporia State Research Studies 5 at 6 (affirming captured American rebels were granted POW status from 1782, one year before Britain recognized US independence in the Treaty of Paris of 1783).
110 Cockburn, Sir Alexander, Nationality: On the Law Relating to Subjects and Aliens (London: Wm Ridgway, 1869)Google Scholar at 76.
111 Ibid at 78.
112 Flory, supra note 42 at 30.
113 Mason, supra note 49 at 520 (explaining that the white group was composed of POWs who saw the Indian National Army (INA) as an opportunity to escape captivity and return to British lines as soon as possible; the grey group included the credulous and opportunistic Indians who believed Japanese propaganda and joined the INA, but eventually deserted the Japanese; while the black group included those who “clearly knew what they were doing and did their utmost to bring about a Japanese victory, either on a simple calculation of self-interest or because they were captivated by Bose’s eloquence”).
114 Ibid.
115 Lebra, supra note 27 at 201.
116 Ibid at 202.
117 Mason, supra note 49 at 522.
118 David, supra note 18 at 203.
119 Mason, supra note 49 at 522.
120 US General Orders no 100 (1863), art 48 [Lieber Code].
121 Ibid.
122 War Department: Office of the Chief of Staff, Rules of Land Warfare (Washington, DC: Government Printing Office, 1914)Google Scholar at 23, para 38.
123 Judge Advocate General, Basic Field Manual, Vol VII: Military Law, Part Two: Rules of Land Warfare (Washington, DC: Government Printing Office, 1934)Google Scholar at 4, para 11 (affirming that “[d]eserters from, or subjects of, the invading belligerent” do not enjoy immunity given to members of a levée en masse).
124 The Law of Land Warfare, Field Manual 27-10 (1 October 1940) at 4 (affirming that “deserters from, or subjects of, the invading belligerent” do not enjoy immunity given to members of a levée en masse) [Law of Land Warfare].
125 Ex Parte Quirin, supra note 68 at 37–38.
126 In re Territo, supra note 69 at 145.
127 Law of Land Warfare, supra note 124 at 33, s 79.
128 Hamdi v Rumsfeld, supra note 72.
129 This is a relevant example for defection in IACs since John Walker Lindh was captured during an IAC between US-led forces and the Taliban government of Afghanistan, before it mutated into a non-international armed conflict where the Afghan government invited international forces to aid in the fight against non-state armed groups. Lindh was captured on 25 November 2001 by troops of the Afghan Northern Alliance, interrogated by Central Intelligence Agency agents, and eventually transferred to the US base “Camp Rhino” on 7 December 2001. This was prior to the creation of the International Security Assistance Force (20 December 2001) and the Afghan Interim Administration (22 December 2001).
130 Krammer, Arnold, Prisoner of War: A Reference Handbook (Westport: Praeger Security International, 2008)Google Scholar at 66.
131 US Department of Defence, Law of War Manual (June 2015) at 519, s 9.3.2.1 [US Law of War Manual].
132 Ibid at 110, s 4.4.4.2.
133 Ibid at 116, s 4.5.2.6.
134 Ibid at 111, s 4.4.4.2, n 86.
135 Ibid at 520, s 9.3.4.2.
136 United Nations, Report of the Secretary-General: Respect For Human Rights in Armed Conflicts, UN Doc A/7720 (20 November 1969) at 33, para 88 (establishing that “the view has been expressed that persons who defect from their own forces and give themselves up to the enemy … do not have prisoner of war status”).
137 Mentioning the 1958 UK manual at para 126, n 1 (“[d]efectors are not considered to have ‘fallen’ into the power of the enemy within the meaning of art 4a. … [T]he term ‘fallen’ clearly shows that it concerns combatants who pass into enemy hands, not of their own free will but by a force beyond their control because they are under its restraint”). It must be highlighted that a corresponding provision does not exist in the current UK Joint Service Manual of the Law of Armed Conflict, Joint Service Publication 383 (2004) [UK Joint Service Manual].
138 Pictet, supra note 81 at 50 (affirming that the expression “fallen into the power” replaced the term “captured” in an attempt to cover other situations, apart from capture, in which combatants find themselves in the power of enemy forces. In that sense the term “fallen” has “a wider significance … covering the case of soldiers who became prisoners without fighting, for example following a surrender”).
139 Gillespie, Alexander, A History of the Laws of War, vol I (Oxford: Hart, 2011)Google Scholar at 60, n 262.
140 Ibid at 61.
141 Rosas, supra note 108 at 384, n 744.
142 UK Joint Service Manual, supra note 137, ch 8, s K, para 8.116.1, n 340.
143 República Argentina, Manual de Derecho International de Los Conflictos Armados (2010) (approved by Ministerial Resolution no 435/2010), ch 3, s 3, paras 3.08 (replicating the categories of Geneva Convention III), 3.25 (listing spies and mercenaries as the only exceptions); Brazil, Ministério Da Defesa, Manual de Emprego do Direito Internacional dos Conflitos Armados (2011), ch III, arts 3.1 (replicating the categories of Geneva Convention III), 3.3 (listing spies and mercenaries as the only exceptions); France, Manuel de droit des conflits armés (2012) at 76 (establishing that combatants are POWs), 32 (defining combatants by replicating the definition of Geneva Convention III); Federal Republic of Germany, Law of Armed Conflict Manual, Joint Service Regulation (zdv) 15/2 (May 2013), para 809 (replicating the categories of Geneva Convention III) [German Manual]; Italia, Stato Maggiore Della Difesa, Manuale Di Diritto Umanitario, Doc SMD-G-014 (1991) at 3, vol ii, para 1; Mexico, Secretaria de la Defensa Nacional, Manual de Derecho Internacional Humanitario Para El Ejercito y FAM (June 2009), ch III, s IV, arts 138–48 (replicating the categories of Geneva Convention III); Peru, Ministerio de Defensa, Direccion General de Educacion Y Doctrina, Manual Para las Fuerzas Armadas – Derechos Humanos Y Derecho Internacional Humanitario (21 May 2010), part ii, ch 3, s iv, art 35 (replicating the categories of Geneva Convention III); Sierra Leone, Lt M Koroma, The Law of Armed Conflict: Instructor Manual for the Republic of Sierra Leone Armed Forces (September 2007) at 40; Spain, El Derecho de Los Conflictos Armados, vol 1, Mando de Adiestramiento Y Doctrina, Doc or7-004, para 8.2.b(1) (defining POW based on Geneva Convention III and Additional Protocol I) [Spain Manual]; Ukraine, Ministry of Defence of Ukraine, Order no 400 (11 September 2004), art 1.2.31 (on the adoption of the manual on the application of the rules of international humanitarian law in the armed forces of Ukraine); Soviet Union, Order of the Defence Minister of the USSR, Doc 75 (16 February 1990), part vi, art 13.
144 Canada, Law of Armed Conflict at the Operational and Tactical Levels, Doc b-gj-005-104.fp-021 (2001), ch 10, s 2, paras 1006 (replicating the categories of Geneva Convention III), 1007 (listing as exceptions: civilians who take part in hostilities other than a levée en masse, mercenaries, and spies) [Canada Manual]; Chile, Ejército de Chile – Comando de Institutos y Doctrina, Manual Derecho Operacional (2009), paras 2.8.2.1 (replicating the categories of Geneva Convention III), 2.8.2.2 (listing as exceptions: civilians who take part in hostilities and do not belong to a levée en masse, mercenaries, spies, and sanitary and religious personnel); Commonwealth of Australia, Law of Armed Conflict, Doc addp 06.4 (2006), ch 10, paras 10.06 (replicating the definition of Geneva Convention III), 10.08–10.14 (listing as exceptions: medical and religious personnel, the wounded and sick, mercenaries, civilians, diplomatic staff, journalists); UK Joint Service Manual, supra note 137, ch 8, s B, paras 8.3–8.4 (replicating the categories of Geneva Convention III), 8.6–8.18 (listing other categories: the wounded and sick, medical and religious personnel, auxiliary medical personnel, combatants qualified as medical personnel or chaplains, members of civil defence organizations, mercenaries, civilians, diplomatic staff and agents, and journalists).
145 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, art 31 (entered into force 27 January 1980) [VCLT].
146 Geneva Convention III, supra note 20, art 87.
147 Ibid, art 100.
148 Koi, supra note 53 at 449.
149 US Law of War Manual, supra note 131 at 110, s 4.4.4.2, n 85 (mentioning art 87 of Geneva Convention III).
150 Ka Ho, supra note 77 at 400, para 17.
151 Ibid at 401, para 18.
152 Geneva Convention III, supra note 20, art 87(1).
153 Pictet, supra note 81 at 430.
154 Koi, supra note 53 at 449.
155 Oppenheim, supra note 52 at 311, para 222.
156 German Manual, supra note 143, para 497 (affirming that “defectors or prisoners of war have no parlementaire status and thus no right of inviolability”).
157 Greenwood, Christopher, “Scope of Application of Humanitarian Law” in Fleck, Dieter, ed, The Handbook of International Humanitarian Law, 2nd ed (Oxford: Oxford University Press, 2008)Google Scholar 45 at 64, para 226.
158 Canada Manual, supra note 144, ch 14, para 1402; UK Joint Service Manual, supra note 137, ch 10, s B, para 10.4; Spain Manual, supra note 143, para 2.6.c.(1); US Law of War Manual, supra note 131 at 829, s 12.5. Additionally, this exception does not appear in any of the military manuals defining parlementaires that are included on the ICRC’s customary IHL webpage relating to rule 66 (non-hostile contacts between the parties to the conflict), s C (on the definition of parlementaires) (online: ICRC <https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cha_chapter19_rule66_sectionc>).
159 Green, supra note 49 at 114.
160 Ibid.
161 Pictet, supra note 81 at 12–13.
162 Ibid at 13.
163 Susan Elman, “Prisoners of War under the Geneva Convention” (1969) 18 Intl & Comp LQ 178 at 183.
164 Ibid.
165 Arai-Takahashi, supra note 75 at 88.
166 Prosecutor v Prilić et al, IT-04-74-T, Trial Judgment (vol III) (29 May 2013) at para 603 [Prilić Trial]; Prosecutor v Prilić et al, IT-04-74-A, Appeals Judgement (vol I) (29 November 2017) at para 359 [Prilić Appeal].
167 Prilić Trial, supra note 166 at para 604.
168 Prilić Appeal, supra note 166 at paras 348–60.
169 ICRC, Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (Geneva: ICRC, 1947)Google Scholar.
170 Namely, Australia, Belgium, Brazil, Canada, China, Czechoslovakia, France, Great Britain, India, The Netherlands, New Zealand, Norway, Poland, Union of South Africa, and the United States.
171 ICRC, supra note 169 at 202 (establishing in art 45 that “prisoners of war shall be subject to the laws, regulations, and orders in force in the armed forces of the detaining power. Any act of insubordination shall render them liable to the measures prescribed by such laws, regulations, and orders, except as otherwise provided in this chapter” (at 204).
172 Ibid at 203.
173 Pictet, supra note 81 at 407.
174 Ibid.
175 ICRC, supra note 169 at 204–05.
176 Geneva Convention III, supra note 20, arts 87, 100.
177 Dinstein, , The Conduct of Hostilities under the Law of International Armed Conflict, 2nd ed (Cambridge: Cambridge University Press, 2010)CrossRefGoogle Scholar at 40. Note that this formulation was later rephrased by Dinstein in his third edition in 2016 (Dinstein, supra note 50 at 55), which reads “…is not spelt out as such in the Geneva Conventions, and was inferentially deduced from the Conventions in the case law.”
178 United Nations, Yearbook of the International Law Commission, vol 2 (New York: United Nations, 1966)Google Scholar at 221, para 15.
179 VCLT, supra note 145, art 31(3)(b) (establishing that “there shall be taken into account, together with the context: … (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”).
180 International Law Commission, Second Report on Subsequent Agreements and Subsequent Practice in Relation to Treaty Interpretation, UN Doc A/CN.4/671 (26 March 2014) at 23 (Georg Nolte, special rapporteur).
181 Ibid.
182 Ibid at 69.
183 Geneva Convention III, supra note 20, art 4 (requiring membership of certain armed groups, including particular requirements of distinction and organization for some of them: art 4(a)(2)); ICRC, Customary International Humanitarian Law, vol 1, Rules (Geneva: ICRC, 2005)Google Scholar, Rule 106: conditions for prisoner of war status; Additional Protocol I, supra note 61, art 43.
185 Geneva Convention III, supra note 20, arts 82–88.
186 Treatment of Polish Nationals and Other Persons of Polish Origin or Speech in Danzig Territory (1932), Advisory Opinion, PCIJ (Ser A/B) No 44 at 24.
187 Greco-Bulgarian Communities (1930), Advisory Opinion, PCIJ (Ser B) No 17 at 32.
188 VCLT, supra note 145, art 27 (establishing that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”).
189 Koi, supra note 53 at 449.
190 Oppenheim, supra note 13 at paras 86, 268 (referring to para 222 of the same book); Edmons, James E & Oppenheim, Lassa, Land Warfare: An Exposition of the Laws and Usages of War on Land for the Guidance of Officers of His Majesty’s Army (London: His Majesty’s Stationery Office, 1910)Google Scholar at para 36; Hall, William E, A Treatise on International Law (Oxford: Clarendon Press, 1917)Google Scholar at 583, para 190 (referencing the work of other authors on the general topic of the “flag of truce”).
191 Ian Brownlie, “The Relations of Nationality in Public International Law” (1963) 39 Brit YB Intl L 284 at 348.
192 International Law Commission, Draft Articles on Diplomatic Intercourse and Immunities with Commentaries, in Yearbook of the International Law Commission, vol 2 (1958) at 102. Vienna Convention on Diplomatic Relations, 18 April 1961, 500 UNTS 95 (entered into force 24 April 1964) [VCDR].
193 International Law Commission, supra note 192 .
194 Denza, Eileen, Diplomatic Law: Commentary on the Vienna Convention on Diplomatic Relations (Oxford: Oxford University Press, 2016)Google Scholar at 338.
195 VCDR, supra note 192, arts 33, 37–38; Vienna Convention on Consular Relations, 24 April 1963, 596 UNTS 261 (entered into force 19 March 1967), arts 33, 37–38, 71. Notice should be given to the fact that all exceptions regarding one’s own nationals and permanent residents are expressed in the text of the conventions and never implied.
196 Koi, supra note 53 at 450.
198 Koi, supra note 53 at 442–43.
199 Ibid at 450.
200 R v Joyce, [1945] WN 220, 173 LT 377 (Eng CA) [Joyce Appeal]; Joyce v Director of Public Prosecutions, [1946] AC 347, [1946] 1 All ER 186 (UKHL) [Joyce HL]. William Joyce (a.k.a. Lord Haw Haw) was an American citizen who resided in the United Kingdom and joined the Nazis as an infamous propagandist. He was captured, tried in the United Kingdom for treason for violating the theory of local allegiance, found guilty, and executed.
201 R v Neumann, (1949) 3 SALR 1238 (TPD).
202 Koi, supra note 53 at 450.
203 Ibid at 449.
204 Ibid at 442.
205 Not only is this type of allegiance recognized at common law; traditionally, soldiers in armies undertake oaths of allegiance as part of their acceptance into military forces. See art 57 of the Lieber Code, supra note 120, stating “so soon as a man is armed by a sovereign government and takes the soldier’s oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not individual crimes or offenses. No belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies.”
206 Koi, supra note 53 at 449.
207 Richard Baxter, “The Privy Council on the Qualifications of Belligerents” (1969) 63 Am J Intl L 290 at 293.
208 Suffice it to recall the trial of generals Homma and Yamashita for the establishment of the doctrine of command responsibility, now a fundamental doctrine of international criminal law. See David L Herman, “A Dish Best Not Served at All: How Foreign Military War Crimes Suspects Lack Protection under United States and International Law” (2002) 172 Mil L Rev 40.
209 The King v Lodewyk Johannes de Jager (Natal), [1907] UKPC 24 at 2; United States v Shinohara, Military Commission Cases no 134819 (28 July 1945) (as quoted in Robert D Powers Jr, “Note: Treason by Domiciled Aliens” (1962) 17 Mil L Rev 123 at 127, n 17).
210 R v Joyce, [1945] 2 All ER 673 (Eng Crim Ct); Joyce Appeal, supra note 200; Joyce HL, supra note 200; see also Hall, John W, ed, The Trial of William Joyce (London: William Hodge and Company, 1946)Google Scholar.
211 Geneva Convention III, supra note 20, art 85.
212 Pictet, supra note 81 at 419 (using as an example the crime of membership of the communist party, when this membership is not a criminal offence in the country of origin of the POW).
213 Ibid.
214 For instance, Koi was charged with the illegal possession of firearms; while John Walker Lindh was charged with the crimes of conspiracy to murder US nationals, providing material support and resources to foreign terrorist organizations, contributing services to Al Qaeda, supplying services to the Taliban, and using and carrying firearms and destructive devices during crimes of violence.
215 Bassiouni, Mahmoud Cherif, “The Political Offence Exception in Extradition Law and Practice” in Bassiouni, Mahmoud Cherif, ed, International Terrorism and Political Crimes (Springfield: Charles C Thomas, 1975)Google Scholar 383 at 399.
216 Ibid at 405. For a detailed discussion on the topic, see Bassiouni, Mahmoud Cherif, International Extradition: United States Law and Practice (New York: Oceana, 2002)Google Scholar at 611–54.
217 Christopher Burris, “Re-Examining the Prisoner of War Status of PLO Fedayeen” (1997) 22 NCJ Intl L & Com Reg 943 at 965.
218 Melzer, Nils, Targeted Killing in International Law (Oxford: Oxford University Press, 2008)CrossRefGoogle Scholar at 307 (according to Melzer, the underlying assumption of IACs is that “all organized armed actors conducting hostilities under the command of a party to an international armed conflict do so as organs of a subject of international law, and that their conduct must therefore be accredited to that party”).
219 Redalié, Lorenzo, La conduite des hostilités dans les conflits armés asymétriques: un défi au droit humanitaire (Geneva: Université de Genève, 2013)Google Scholar at 88; Crawford, supra note 66 at 52; Bouchet-Saulnier, Françoise, The Practical Guide to Humanitarian Law (Lanham, MD: Rowman & Littlefield, 2002)Google Scholar at 50.
220 Lieber Code, supra note 120, art 57.
221 United States Military Tribunal, Judgment, Trial of Wilhelm List and Others, reprinted in United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol 8 (London: United Nations War Crimes Commission, 1947)Google Scholar at 50 (qualifying as unquestionable the fact that “acts done in time of war under the military authority of an enemy, cannot involve any criminal liability on the part of officers or soldiers if the acts are not prohibited by the conventional or customary rules of war”).
222 Geoffrey S Corn & Michael L Smidt, “‘To Be or Not to Be, That Is the Question’: Contemporary Military Operations and the Status of Captured Personel” (1999) 14 Army Law 1 at 14, n 124.
223 Waldemar A Solf & Edward R Cummings, “A Survey of Penal Sanctions under Protocol I to the Geneva Conventions of August 12, 1949” (1977) 9 Case W Res J Intl L 205 at 212; see also McDougal & Feliciano, supra note 44 at 712 (arguing that acts committed during war may be punishable as crimes under domestic law “only to the extent that such acts are violative of the international law on the conduct of hostilities”).
224 United States v Noriega, 746 F Supp 1506 (SD Fla 1990).
225 Ibid.
226 Bothe, Michael, Partsch, K Josef & Solf, Waldemar A, New Rules for Victims of Armed Conflicts: Commentary on the 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff, 2013)Google Scholar at 277.
227 Sassòli, Bouvier & Quintin, supra note 84, ch 6 at 1; Derek Jinks, “The Declining Significance of POW Status” (2004) 45 Harv Intl LJ 367 at 376, n 38.
228 Re Weizsaecker, supra note 19 at 356 (basing its decision on art 17 of Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 18 October 1907, USTS 540 (entered into force 26 January 1910), which expressly states that a neutral individual (such as the Swedish nationals in that case) that abandons his neutrality, for instance by enlisting in the army of one of the belligerents, shall not be treated more severely than a national of a belligerent state for the same conduct.
229 Johnson v Eisentrager, 339 US 763 at 793 (1950).
230 Convention on the Reduction of Statelessness, 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975), art 8(3)(a) and (b) (affirming that the state has the right to de-nationalize an individual who violates his duty of loyalty); Sandra Mantu, “‘Terrorist’ Citizens and the Human Right to Nationality” (2018) 26 J Contemporary European Studies 28 at 30.
231 These measures are domestic decisions that states take for national security reasons and often include the blacklisting of individuals associated with terrorism or organized crime.
232 Eline Gordts, “America’s Afghan and Iraqi Interpreters Risk Lives but Wait Years in Danger for Visas,” Huffington Post (23 June 2013); Shashank Bengali, “Afghans Who Helped the U.S. Military Worry They, Too, Will Suffer under Trump’s Refugee Ban,” LA Times (30 January 2017); Quil Lawrence, “Why the Number of U.S. Visas Being Granted to Afghan and Iraqi Allies Are Down,” National Public Radio (24 August 2018).
234 Debuf, supra note 63 at 205.