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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?
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    I am not sure an inconvenience is an excuse to not follow the laws regarding prisoners of war. This also looks like it has multiple distinct questions that should be split up.
    – Joe W
    Jul 13, 2021 at 16:36
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    Practically speaking, if they win, whatever they did to the POW's was legal, if they lose, it wasn't. Victors rarely punish their own soldiers, and there's no 3rd party with jurisdiction.
    – Ryan_L
    Jul 13, 2021 at 18:27
  • It really depends who wins and who loses - there are plenty of documented cases of Allied soldiers in WW2 killing German PoWs during the D-Day invasions simply because they didn't have the resources to handle them. There are even documented cases of German and Allied soldiers carrying out the same acts and only the German commanders later being held accountable.
    – user28517
    Jul 13, 2021 at 21:06
  • @Moo A lot of the laws in question were created after WW2 and everything that happened I would wager if those happened today it would be treated differently.
    – Joe W
    Jul 13, 2021 at 21:57
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    @JoeW there were treaties in place pre-WW2 which required good conduct of prisoners of war - the Geneva Convention as we know it was indeed created in 1949 but it was an update of existing treaties and not a brand new concept in its own right.
    – user28517
    Jul 13, 2021 at 22:01

2 Answers 2

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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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    Given the efforts various governments went to in order to not accept Taliban fighters as “prisoners of war”, and given those efforts led to the term “enemy combatants” being widely used instead, I would take this answer to be the “legal truth” but not something that stands up in actuality.
    – user28517
    Jul 14, 2021 at 10:17
  • @Moo Yep. What happens in Helmand, stays in Helmand.
    – user35069
    Jul 14, 2021 at 10:34
  • When do you have to accept responsibility for someone as a prisoner of war? Can you just take their weapons and tell them to go home if you’re willing to risk seeing them on the battlefield again? I understand the political maneuvering to avoid responsibility; I’m interested in the legal obligations someone might be able to impose by surrendering.
    – ColleenV
    Jul 14, 2021 at 16:56
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    @ColleenV once upon a time, countries recognised the idea of “parole” for defeated armies - they would be released to go home on the basis that they would take part in no further fighting. It fell out of use as countries started putting those soldiers back into service against those who let them go - thats why you take prisoners now, to deny your enemy a resource they will use against you.
    – user28517
    Jul 15, 2021 at 2:18
  • @Moo I understand, but if you were moving against a time sensitive target and didn’t want to be slowed down by prisoners, you don’t have to take prisoners just because they surrendered to you. You’re just legally (and morally) obligated to not kill them.
    – ColleenV
    Jul 15, 2021 at 11:01
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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.

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