The Declining Significance of POW Status

by: Derek Jinks

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The author is Visiting Professor of Law, University of Chicago Law School; Associate Professor of Law Designate, Arizona State University College of Law. M.Phil., Yale University, 1999; J.D., Yale Law School, 1998; M.A., Yale University, 1998; B.A., University of Texas at Austin, 1991.

Volume 45, Issue 2 (Summer 2004)

What is the significance of prisoner-of-war (POW) status? Drawing on the substance, universal acceptance, broad-based institutionalization, and enforcement machinery of the Geneva Convention for the Protection of Prisoners of War (“POW Convention”), conventional wisdom maintains that denial of POW status to combatants has drastic protective and policy consequences. Contrary to this conventional wisdom, this Article argues that denial of POW status carries few protective or policy consequences, and that the gap in protection for those classified as POWs and those not so classified (e.g., those designated “unlawful combatants”) is closing. The only gaps that persist are: (1) that POWs are “assimilated” into the legal regime governing the armed forces of the detaining state; and (2) that POWs enjoy “combatant immunity.” The scope and significance of these gaps are, however, also diminishing—from both a protection and policy perspective. The Article further argues that this emerging “protective parity” has important implications for humanitarian law and policy: (1) it clarifies and consolidates debates about coverage gaps in the Geneva law; (2) it recasts debates about the proper procedure for determining “status” in humanitarian law(procedurally, POW status might be understood only as an affirmative defense to any prosecution for simple participation in hostilities); and (3) it underscores the escalating inefficiencies of approaches that calibrate treatment based on complex status determinations (and, in doing so, provides an explanation of why some states—including the United States—expressly incorporate elements of “protective parity” into their military policy). Finally, the Article offers a normative defense of “protective parity”—emphasizing whether it can be reconciled with the principle of distinction.

Conventional wisdom maintains that denial of POW status to captured combatants has drastic consequences for the scope of applicable humanitarian protections. Indeed, the prevailing view is that denying captured enemy combatants POW status places them “at the mercy of the detaining power.” The ground-breaking Lieber Code of 1863, issued by President Abraham Lincoln as General Order 100 governing the conduct of U.S. forces in the Civil War, provided that persons engaged in hostilities without satisfying the requirements for POW status could be captured and summarily shot. The Hague Regulations of 1907 provided that the rights and obligations of war applied only to persons satisfying the criteria for POW status. Although no U.S. court has had occasion to address the question directly, some courts have suggested that the government may treat “unlawful combatants” summarily. Many foreign courts have expressly supported this view. Similar views are espoused by many commentaries, including several important treatises on the laws of war. In short, it is generally believed that the denial of POW status carries drastic protective consequences for captured combatants—some suggesting that denial of this status leaves captured combatants unprotected by the law of war.

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