By Kara Kozikowski
The face of warfare in the past century has been nothing if not ever evolving. Throughout the past hundred years, armed conflicts have taken a more modern and more irregular form, and the issues that arise from them may not be matters that are easily resolved in the laws of war established by the Geneva Conventions. The question of how to ensure the protection of prisoners of war (POWs) from human rights offenses and persecution upon their release is one of these issues, and one that has become particularly prescient considering the Global War on Terror.
The Geneva Conventions are internationally recognized as a body of Public International Law that governs international armed conflict. It comprises of a series of treaties that aim to establish a precedent for the treatment of civilians, armed combatants, and prisoners of war. Preventing torture of an individual while one is granted the protection of a prisoner of war status is a critical tenet of the Third Geneva Convention, and it contains multiple articles in each iteration of the Convention to take this notion a step further. These articles clearly attempt to protect prisoners of war during the repatriation process in two ways; by setting rules for how they may be repatriated, and when to decide against repatriation if State authorities have a reasonable belief that they would be sending the prisoner into a situation, even in the prisoner’s native State, that would violate their human rights.
International human rights laws prevent States from releasing detainees to the custody of a different State if their release to the State in question could submit them to violations of their human rights. Article III of the Geneva Conventions declares that “No State Party shall expel, return, or extradite a person to another State where there are substantial grounds for believing that he would be subjected to torture.” This idea is upheld in Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance, and a declaration of the Human Rights Committee which states that “State parties must not expose individuals to the danger of torture or cruel, inhuman, or degrading treatment upon return to another country.” While these provisions aim to protect POWs as they attempt to repatriate into their native societies, the system remains imperfect.
Transferring States must additionally consider secondary refoulment—whether the transferee will be later transferred to other States where a risk of torture and human rights violations exist, including failed states or States that are unable or otherwise unwilling to stop these offenses. The Geneva Conventions emphasize that this rule must be followed to its fullest possible extent, but also that there must be substantial grounds to believe that the transferee could face a true threat of torture or inhumane treatment. The Human Rights Committee, the Committee against Torture, and some domestic courts have held that to make this determination a transferee must be provided access to an individualized procedure to evaluate the risk of post-transfer mistreatment before the transfer occurs. Additionally, Article 45 of the Third Geneva Convention states that “in no circumstance shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.” States, therefore, must be sure that the prisoner they are transferring will not be subjected to persecution, torture, or violations of their human rights. Despite this rule, there is no specific instruction on how a State should make certain that they are not sending a prisoner to a location where the individual will not be subjected to such treatment.
The weakness of these rules lies in the ability it gives unreasonable actors to manipulate the law to their advantage. How can and should States satisfy themselves that an individual will not be subjected to persecution when they are transferred? In Article III of the Geneva Conventions, it is stated that “competent authorities shall take into account all relevant considerations including…. the existence in the State concerned a consistent pattern of gross, flagrant, or mass violations of human rights.” The international community, then, is placed in a position to trust irrational States or States who are themselves committing human rights violations, with returning prisoners and deciding in a reasonable manner if they should be allowed to return to a country whose customs they might resent. Considering the manner in which warfare has evolved since the adoption of the Geneva Convention, a re-examination of this process may be prudent.
The ability for a State to claim they are acting as competent authorities giving reasonable consideration to the repatriation process is a daunting prospect. The boundaries of this law are particularly problematic in 2016. Faced with a world stage populated by groups such as ISIS who are unquestionably unreasonable actors, how hindered has our ability to trust the competency of other States in prisoner release become?
Hyperlinks to sources used:
Jonathan Horowitz, Transferring Wartime Detainees and a State’s Responsibility to Prevent Torture, 2 Am. U. L. Brief 42, 43-57 (2012).