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The updated ICRC Commentary on the Third Geneva Convention: A new tool to protect prisoners of war in the twenty-first century

Published online by Cambridge University Press:  18 March 2021

Jemma Arman ,
Jean-Marie Henckaerts ,
Heleen Hiemstra  and
Kvitoslava Krotiuk
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Abstract

Since their publication in the 1950s and 1980s respectively, the Commentaries on the Geneva Conventions of 1949 and their Additional Protocols of 1977 have become a major reference for the application and interpretation of those treaties. The International Committee of the Red Cross, together with a team of renowned experts, is currently updating these Commentaries in order to document developments and provide up-to-date interpretations of the treaty texts. This article highlights key points of interest covered in the updated Commentary on the Third Geneva Convention. It explains the fundamentals of the Convention: the historical background, the personal scope of application of the Convention and the fundamental protections that apply to all prisoners of war (PoWs). It then looks at the timing under which certain obligations are triggered, those prior to holding PoWs, those triggered by the taking of PoWs and during their captivity, and those at the end of a PoW's captivity. Finally, the article summarizes key substantive protections provided in the Third Convention.

Keywords

international humanitarian lawGeneva Convention IIIupdated Commentaryprisoners of warinternmentcaptivityDetaining Powerhumane treatmentprotection of person and honourequal treatmentnon-discriminationprinciple of assimilationtransferrelease and repatriationseriously wounded and sick prisonersquartersfoodclothingmedical care and sanitationrecreationreligionrelations with the exteriorlabourcomplaintsprisoners’ representativesdisciplinary and judicial proceedings
Type
Selected articles
Information
International Review of the Red Cross , Volume 102 , Issue 913: Digital technologies and war , April 2020 , pp. 389 - 416
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the ICRC.

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Footnotes

*

The authors wish to acknowledge that this article summarizes some of the key findings of the updated Commentary and as such reflects the input of many experts involved in the drafting and review of the Commentary, including the authors’ colleagues in the Commentaries Update Unit Bruno Demeyere, Yvette Issar, Eve La Haye and Heike Niebergall-Lackner.

References

1 Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vols 1–6, ICRC, Geneva, 1952–60Google Scholar. The ICRC has engaged in the writing of the original Commentaries, and the updating of those Commentaries, pursuant to its role as guardian and promoter of international humanitarian law (IHL). This role is recognized in the Statutes of the International Red Cross and Red Crescent Movement, in particular the ICRC's role “to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof”. See Statutes of the International Red Cross and Red Crescent Movement, 1986, Arts 5(2)(c), 5(2)(g). On the ICRC's role in the interpretation of IHL, see also François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC and Macmillan Education, Oxford, 2003, pp. 914–922.

2 For more details, see Demeyere, Bruno, Henckaerts, Jean-Marie, Hiemstra, Heleen M and Nohle, Ellen, “The Updated ICRC Commentary on the Second Geneva Convention: Demystifying the Law of Armed Conflict at Sea”, International Review of the Red Cross, Vol. 98, No. 902, 2016CrossRefGoogle Scholar; Cameron, Lindsey, Demeyere, Bruno, Henckaerts, Jean-Marie, Haye, Eve La and Niebergall-Lackner, Heike, “The Updated Commentary on the First Geneva Convention – a New Tool for Generating Respect for International Humanitarian Law”, International Review of the Red Cross, Vol. 97, No. 900, 2015CrossRefGoogle Scholar.

3 ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 2nd ed., 2020 (ICRC Commentary on GC III), available at: https://ihl-databases.icrc.org/ihl/full/GCIII-commentary (all internet references were accessed in January 2021). The print edition of the updated Commentary will be published by Cambridge University Press in 2021.

4 It should be noted that in non-international armed conflicts, IHL foresees no entitlement to PoW status as it exists for international armed conflict.

5 ICRC Commentary on GC III, above note 3, Introduction, para. 20, and Art. 21, para. 1932.

6 Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Arts 13, 14, 16.

7 In international armed conflicts since 1949, Article 61 on supplementary pay for PoWs does not appear to have been resorted to. On absence of practice and desuetude, see also ICRC Commentary on GC III, above note 3, Introduction, section C.8.

8 Vienna Convention on the Law of Treaties, 1155 UNTS 18232, 23 May 1969. Articles 31–33 are generally considered to reflect customary international law. See, for example, International Court of Justice (ICJ), Kasikili/Sedudu Island (Botswana v. Namibia), Judgment, 13 December 1999, ICJ Reports 1999, paras 18–20; ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Merits, Judgment, 26 February 2007, ICJ Reports 2007, para. 160; International Law Commission, “Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties”, Conclusion 2.1 (adopted on second reading), Report of the International Law Commission on the Work of its Seventieth Session, UN Doc. A/73/10, 2018, p. 13.

9 GC III, Art. 133; Vienna Convention on the Law of Treaties, Art. 33.

10 For example, a discussion on the application of Article 100 on the death penalty would not be complete without acknowledging the existence of international treaties by which many States have committed to abolishing the death penalty. See ICRC Commentary on GC III, above note 3, Art. 100, para. 3979.

11 For an example in relation to the definition of torture, see ibid., Art. 3, section G.2, and Art. 130, section D.2.a. For more information on the use of other relevant rules of international law, see ibid., Introduction, section C.5.

12 Ibid., Introduction, para. 4.

13 For example, during the Napoleonic Wars, the United Kingdom and France entered into an agreement which allowed for a “protecting power” to visit prisoners and provide additional food. In 1896 Italy and Ethiopia entered into the Treaty of Addis Ababa, which included the requirement of release of all prisoners, as well as an obligation on the part of Ethiopia to allow a detachment of the Italian Red Cross to facilitate this process. Alexander Gillespie, A History of the Laws of War, Vol. 1: The Customs and Laws of War with Regards to Combatants and Captives, Hart Publishing, Oxford, pp. 149, 164; James Molony Spaight, War Rights on Land, Macmillan, London, 1911, p. 37.

14 See Allan Rosas, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts, Institute for Human Rights, Åbo Akademi University, Turku/Åbo, 1976 (reprinted 2005), pp. 69, 72–73; and, in particular, the Lieber Code of 1863: Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No. 100 by President Abraham Lincoln, Washington, DC, 24 April 1863.

15 Regulations concerning the Laws and Customs of War on Land, Annexed to Convention (II) with respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Section II. Provisions dealing with PoWs can also be found in Institute of International Law, The Laws of War on Land, Oxford, 9 September 1880, e.g. Arts 21–22, 61–78.

16 A. Rosas, above note 14, p. 70.

17 ICRC Commentary on GC III, above note 3, Introduction, para. 7.

18 See, for example, the Agreement between the British and Ottoman Governments respecting Prisoners of War and Civilians, signed in Bern in December 1917 (HM Stationery Office, London, 1918).

19 During World War I, for example, it is estimated that an unprecedented 7 to 8 million soldiers were taken as PoWs. On treatment issues for PoWs in World War I, see A. Gillespie, above note 13, pp. 166–172.

20 See François Bugnion, above note 1, p. 121, for more detail on the preparatory steps that led to the adoption of the 1929 Convention.

21 In addition, Japan declared that it was ready to apply the Convention during World War II “under conditions of reciprocity and mutatis mutandis”. ICRC, Report on Activities during the Second World War, Vol. 1, Geneva, 1948, p. 229.

22 ICRC Commentary on GC III, above note 3, Art. 4, section D.1. See also ibid., para. 1041, in relation to the denial of PoW status to soldiers of governments or authorities not recognized by the Detaining Power.

23 See, for example, A. Gillespie, above note 13, p. 186.

24 See, for example, A. Rosas, above note 14, p. 78; A. Gillespie, above note 13, pp. 192–200; Krähenmann, Sandra, “Protection of Prisoners in Armed Conflict”, in Fleck, Dieter (ed.), The Handbook of International Humanitarian Law, 3rd ed., Oxford University Press, Oxford, 2013, p. 362Google Scholar.

25 For example, it is estimated that there were still 630,000 German prisoners of war in France in 1947. S. Krähenmann, above note 24, p. 363.

26 The requirement that the ICRC be allowed to visit “all places where prisoners of war may be” is provided for in GC III, Art. 126. The creation of a Central Tracing Agency, operating under the responsibility of the ICRC, is established in GC III, Art. 123.

27 For a discussion on the expression “fallen into the power of the enemy”, see ICRC Commentary on GC III, above note 3, Art. 5, paras 1100–1101.

28 For details, see Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (GC I), Art. 14; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (GC II), Art. 16.

29 ICRC Commentary on GC III, above note 3, Art. 4, para. 977.

30 Ibid., Art. 4, para. 979.

31 Ibid., Art. 4, paras 979–982.

32 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 106, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1. For further discussion on this point, see ICRC Commentary on GC III, above note 3, Art. 4, paras 983–987.

33 Vienna Convention on the Law of Treaties, Art. 31(3). See also ICRC Commentary on GC III, above note 3, Introduction, paras 92–95.

34 GC III, Art. 4(A)(2).

35 For a more in-depth discussion on the meaning of “belonging to” under Article 4(A)(2), see ICRC Commentary on GC III, above note 3, Art. 4, paras 1001–1009.

36 Ibid., Art. 4, paras 1028–1039.

37 Ibid., para. 1039.

38 Ibid.

39 Ibid., paras 983, 1039.

40 Ibid., para. 1039.

41 See also Ibid., para. 1033.

42 Ibid., para. 1039.

43 Ibid., para. 1036.

44 For example, PoW status was denied by Germany to French forces operating under the command of General de Gaulle, and to Italian units in southern Italy following the signing of an armistice between the Allies and Italy in September 1943. ICRC, Preliminary Documents submitted by the ICRC to the Conference of Government Experts of 1947, Vol. 2, Geneva, 1947, p. 4.

45 Ibid., p. 4.

46 For more information, see ICRC Commentary on GC III, above note 3, Art. 4, paras 1047–1050.

47 For a more detailed discussion, see ibid., Art. 4, paras 1047–1050. See para. 1051 in relation to private military and security companies.

48 Ibid., para. 1050.

49 Ibid., paras 1052–1060.

50 See GC III, Art. 60.

51 ICRC Commentary on GC III, above note 3, Art. 4, para. 1046.

52 Ibid., para. 1062.

53 See GC III, Art. 4(B)(1)–(2); ICRC Commentary on GC III, above note 3, paras 1069–1090.

54 For more information on the exclusion of “spies and saboteurs”, see ICRC Commentary on GC III, above note 3, paras 988–991. For more information on the exclusion of “mercenaries”, see para. 998.

55 Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-B, 1949, p. 270. See also H. W. William Caming, “Nuremberg Trials: Partisans, Hostages and Reprisals”, Judge Advocate Journal, Vol. 4, 1950, p. 19, in relation to the infamous Barbarossa Jurisdiction Order issued on 13 May 1941. This order directed that “partisan suspects” be brought before an officer who would determine whether they were to be shot. This was considered during the Nuremberg Trials as “patently criminal” as it “permitted the immediate killing of alleged partisans and ‘partisan suspects’ without investigation and at the discretion of a junior officer”.

56 ICRC Commentary on GC III, above note 3, Art. 5, para. 1126.

57 Ibid., para. 1127.

58 Ibid., paras 1119–1121.

59 Ibid., para. 1115.

60 Ibid., Introduction, para. 89.

61 Ibid., Art. 21, para. 1932. Further expressions of military necessity can be found in the rules that serve the maintenance of security, discipline and good order in PoW camps. See, for example, GC III, Arts 42 (use of weapons against PoWs), 76 (censorship and examination), 92 (unsuccessful escape) and 95 (disciplinary procedures), which specifically mentions “camp order and discipline”.

62 ICRC Commentary on GC III, above note 3, Art. 13, para. 1570.

63 Ibid., para. 1563.

64 Ibid., Art. 14, para. 1665.

65 Ibid., para. 1658.

66 GC III, Arts 18(3), 44.

67 ICRC Commentary on GC III, above note 3, Art. 14, para. 1659.

68 Ibid., Art. 16, para. 1742.

69 With regard to different treatment in relation to sex, GC III, Art. 14(2) provides that female PoWs are to be treated “with all the regard due to their sex” and, most importantly, that their treatment may in no case be inferior to that of male PoWs.

70 See ICRC Commentary on GC III, above note 3, Art. 16, paras 1743–1744.

71 See GC III, Art. 9(1); Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 75(1). See also ICRC Customary Law Study, above note 32, Rule 88.

72 See, in particular, GC III, Arts 20 (conditions of evacuation), 25 (quarters), 46 (conditions for transfer), 82 (applicable legislation), 84 (courts), 87 (penalties), 88 (execution of penalties), 95 (confinement awaiting hearing), 102 (conditions for validity of sentence), 103 (confinement awaiting proceedings), 106 (right to appeal) and 108 (premises and conditions for serving a sentence). The principle is also implicit in Articles 33 (rights and privileges of retained personnel), 52 (dangerous or humiliating labour) and 60 (advances of pay).

73 See Ibid., Art. 13, and the provisions that give expression to the requirement of humane treatment in specific areas, such as quarters (Art. 25), food (Art. 26), clothing (Art. 27) and hygiene (Art. 29).

74 “However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed.” For further examples, see ibid., Arts 25 (quarters), 46 (conditions of transfer), 50 (authorized work), 84 (courts), 87 (penalties), 95 (confinement awaiting hearing), 102 (conditions for validity of sentence), 103 (confinement awaiting trial) and 108 (execution of penalties).

75 This is consistent with the reference to provisions to be implemented in peacetime in ibid., Art. 2(1).

76 This point was emphasized in the United Kingdom's Baha Mousa Public Inquiry Report. Although the Inquiry concerned the treatment of Iraqi civilian internees by UK armed forces, it contained general conclusions and recommendations that are also relevant to PoWs. With regard to training, the Inquiry concluded that the general training the soldiers received in the law of armed conflict “lacked specific guidance on how to handle a prisoner; what the permitted treatment of a prisoner actually was in practical terms; and most importantly what type of treatment was expressly forbidden” (Vol. 2, para. 6.67). In addition, the Inquiry identified deficiencies in specific teaching courses, including the training given to tactical questioners and interrogators. Accordingly, it made several recommendations, both general (Recommendations 47–58) and specific (Recommendations 59–73), on training soldiers in the handling of prisoners. See Sir William Gage, The Report of the Baha Mousa Inquiry, HM Stationery Office, London, September 2011, Vol. 2, paras 6.66–6.73, 6.339–6.349, and Vol. 3, pp. 1279–1282, 1282–1286, available at: www.gov.uk/government/publications/the-baha-mousa-public-inquiry-report. The Al Sweady Public Inquiry Report referred to several of these recommendations; see Sir Thayne Forbes, The Report of the Al Sweady Inquiry, Vol. 2, HM Stationery Office, London, December 2014, para. 5.101, available at: www.gov.uk/government/publications/al-sweady-inquiry-report.

77 GC III, Art. 22(1).

78 Ibid., Art. 25. This is discussed further below.

79 See ICRC Commentary on GC III, above note 3, Art. 17, para. 1822.

80 GC III, Art. 19(1).

81 Ibid., Art. 20(1).

82 Ibid., Art. 20(3).

83 ICRC Commentary on GC III, above note 3, Art. 24, paras 2058, 2063–2065.

84 GC III, Arts 12(2)–(3), 46–48.

85 Keiichiro Okimoto, “Evacuation and Transfer of Prisoners of War”, in Andrew Clapham, Paola Gaeta and Marco Sassòli (eds), The 1949 Geneva Conventions: A Commentary, Oxford University Press, Oxford, 2015, p. 965, quoted in ICRC Commentary on GC III, above note 3, Art. 46, n. 16.

86 This does not serve as a limitation today, as the Geneva Conventions are universally ratified.

87 GC III, Art. 12(2). This includes neutral States. See ICRC Commentary on GC III, above note 3, Art. 12, section C.2.a.

88 See, however, ICRC Commentary on GC III, above note 3, Art. 12, for a discussion on transfers to non-State entities, including armed groups under the overall control of a State, international organizations or international courts and tribunals, at paras 1530–1532.

89 GC III, Art. 12(3).

90 For a discussion and examples, see ICRC Commentary on GC III, above note 3, Art. 12, section E.2.

91 For further discussion, see ibid., section E.4.

92 PoWs against whom criminal proceedings are pending or who are serving a criminal sentence may be kept back: see GC III, Art. 119(5).

93 See ICRC Commentary on GC III, above note 3, Art. 21, section C.1., and in particular para. 1932.

94 Ibid., Art. 118, para. 4444.

95 Ibid., para. 4462.

96 Jean Pictet (ed.), Commentary on the Geneva Conventions of 12 August 1949, Vol. 3: Geneva Convention relative to the Treatment of Prisoners of War, ICRC, Geneva, 1960, p. 547; ICRC Commentary on GC III, above note 3, Art. 118, para. 4469.

97 See Cordula Droege, “Transfers of Detainees: Legal Framework, Non-refoulement and Contemporary Challenges”, International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 671; Emmanuela-Chiara Gillard, “There's No Place Like Home: States’ Obligations in Relation to Transfers of Persons”, International Review of the Red Cross, Vol. 90, No. 871, 2008, p. 704; Christopher Michaelsen, “The Renaissance of Non-refoulement? The Othman (Abu Qatada) Decision of the European Court of Human Rights”, International and Comparative Law Quarterly, Vol. 61, No. 3, 2012, p. 753. See also ICRC Commentary on GC III, above note 3, Art. 3, section G.7.

98 For a detailed discussion, see ICRC Commentary on GC III, above note 3, Art. 118, paras 4459–4460, and Art. 5, section C.4.

99 GC III, Art. 110.

100 ICRC Commentary on GC III, above note 3, Art. 109, para. 4245.

101 On the temporal scope of the obligation, see ibid., Art. 117, section C.3.

102 Details should be included as to why cremation was chosen (e.g. religious reasons, the wishes of the deceased), given the presumption in GC III in favour of burial. See ibid., Art. 120, para. 4576.

103 Ibid., Art. 120, para. 4563.

104 GC III, Art. 120(1).

105 This includes the establishment of an official grave registration service: ibid., Art. 120(6).

106 AP I, Art. 34(2)(c). See also ICRC Customary Law Study, above note 32, Rule 114.

107 ICRC Commentary on GC III, above note 3, Art. 120, para. 4598.

108 GC III, Art. 22(1).

109 Ibid., Art. 21(1).

110 Ibid., Art. 25(1).

111 ICRC Commentary on GC III, above note 3, Art. 21, para. 2076.

112 Ibid., Art. 25, paras 2078–2079.

113 In comparison, see GC III, Art. 108(2), which requires women PoWs undergoing confinement to be held in separate quarters. See also AP I, Art. 75(5), and ICRC Customary Law Study, above note 32, Rule 119, which refer to separate quarters for women.

114 See also AP I, Arts 75(5), 77(4), and also ICRC Commentary on GC III, above note 3, Art. 25, para. 2104.

115 ICRC Commentary on GC III, above note 3, Art. 26, para. 2113.

116 GC III, Art. 26(2); ICRC Commentary on GC III, above note 3, Art. 26, para. 2126.

117 See, for example, Canada, Prisoner of War Handling Manual, 2004, p. 3F-10: “Ration scales are to be tailored, as far as is possible, to the national dietary requirements of [PoWs], bearing in mind that a diet which is totally suited to [PoWs] from one nation may be inadequate or unsuitable for those from a different nation. There may also be religious or ethnic dietary requirements for which, whenever possible, provision should be made.” See also ICRC Commentary on GC III, above note 3, Art. 26, para. 2121.

118 GC III, Art. 26(4).

119 ICRC Commentary on GC III, above note 3, Art. 26, para. 2131.

120 See, for example, the WHO Framework Convention on Tobacco Control, 2003.

121 GC III, Art. 28.

122 ICRC Commentary on GC III, above note 3, Art. 28, para. 2164.

123 Ibid., Art. 27, para. 2149.

124 Ibid., para. 2148.

125 Ibid., para. 2151.

126 Ibid., para. 2151.

127 GC III, Art. 15.

128 Ibid., Art. 30(2).

129 ICRC Commentary on GC III, above note 3, Art. 30, paras 2232, 2245.

130 Ibid., para. 2242.

131 Ibid., para. 2243.

132 GC III, Art. 29(1).

133 ICRC Commentary on GC III, above note 3, Art. 29, para. 2185.

134 GC III, Arts 34, 38.

135 ICRC Commentary on GC III, above note 3, Art. 34, para. 2359.

136 Ibid., Art. 34, para. 2365.

137 Ibid., para. 2366.

138 See also GC III, Art. 16; ICRC Commentary on GC III, above note 3, Art. 14, para. 1671.

139 See ICRC Commentary on GC III, above note 3, Art. 34, para. 2377, and Art. 38, para. 2461.

140 ICRC, The Geneva Conventions of August 12, 1949: Analysis for the Use of National Red Cross Societies, Vol. 2, Geneva, 1950, p. 27.

141 For more information, see ICRC Commentary on GC III, above note 3, Art. 71, para. 3215.

142 Ibid., para. 3218.

143 GC III, Art. 74.

144 ICRC Commentary on GC III, above note 3, Art. 49, para. 2675.

145 Ibid., Art. 53, para. 2762.

146 GC III, Art. 53.

147 ICRC Commentary on GC III, above note 3, Art. 62, para. 2952.

148 See “Indice suisse des prix à la consommation: La calculatrice du renchérissement”, available at: www.portal-stat.admin.ch/lik_rechner/f/lik_rechner.htm.

149 For further discussion on the fixing of a fair rate, see ICRC Commentary on GC III, above note 3, Art. 62, paras 2952–2955.

150 Ibid., Art. 78, para. 3433. On the absence of Protecting Powers in general, see also ibid., Introduction, paras 49–51.

151 ICRC Commentary on GC III, above note 3, Art. 80, section D.

152 Ibid., Art. 80, para. 3528.

153 See Ibid., Art. 80, para. 3525, in relation to the different usage of the terms “adviser” and “assistant”.

154 Prisoners’ representatives and their assistants/advisers are paid out of canteen funds, unless there are no such funds available, in which case they are paid by the detaining authorities: ibid., Art. 62, para. 2944.

155 GC III, Art. 81(2).

156 GC III, Art. 82(1). For a detailed discussion on the principle of assimilation in relation to disciplinary or judicial proceedings, see ICRC Commentary on GC III, above note 3, Art. 82, section C. For a wider discussion of the principle of assimilation in GC III, see ibid., Introduction, section A.3.c.

157 GC III, Art. 83.

158 Ibid., Art. 89.

159 ICRC Commentary on GC III, above note 3, Art. 51, paras 2737–2738.

160 GC III, Art. 84(2). See also Art. 105.

161 Ibid., Arts 86, 99.