The Third Geneva Convention guarantees several human rights to prisoners of war. Suppose Country A captures prisoners of war, puts them to trial for a specific offense, gives them a good defense lawyer, and, if they are found guilty, executes them. Suppose capital punishment is legal in Country A, so the POWs are subject to the same procedure that would be used for citizens of Country A - they are not discriminated against because of their POW status. Would it be legal under international law?

To give an example: suppose Israel enacts a law that disallows membership in Hamas, for which the punishment is death. Then, Israel puts Hamas militants captured during the war to a due trial, with a good lawyer, and if they are found guilty - they are executed. Would it be legal according to international law?

3 Answers 3


Under Art. 99 of the Geneva Convention,

No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.

No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.

No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel.

This limits crimes to acts which were crimes before being captured. In addition though not stated in the convention, only acts can be punished (e.g. you cannot be punished for "being Arab"). The death penalty is addressed in Art 100

Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences which are punishable by the death sentence under the laws of the Detaining Power.

Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power upon which the prisoners of war depend.

The death sentence cannot be pronounced on a prisoner of war unless the attention of the court has, in accordance with Article 87, second paragraph , been particularly called to the fact that since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will.

("the Power upon which the prisoners of war depend" refers to the nation, the Detaining Power, that captures them as opposed to the specific military unit / individual). The death penalty is thus a legal possibility.



There have been many examples of such trials, the most famous being the Nuremberg trials following World War II. While some of the defendants were civilians, many were service personnel and therefore prisoners of war.

The convention is also clear that escaping prisoners cannot be charged with a crime unless that crime harms another person. For example, if they steal something, they can be administratively punished but if they murder someone, they can be put on trial and criminally punished - including with death if that is on the table.

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    The Geneva conventions were agreed in 1949 but the Nuremberg trials were done by 1946 so I'm not sure they are a good example. They were "under the old system" Commented Dec 26, 2023 at 8:21
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    @RichardTingle Try the Hague convention on war, which was the baseline Geneva was made on.
    – Trish
    Commented Dec 26, 2023 at 13:28
  • Do these allow ex post facto laws like the example in the question?
    – Barmar
    Commented Dec 27, 2023 at 16:21
  • They did continue to execute Nazi criminals after Nuremberg though. Consider, for instance, Adolf Eichmann's execution in 1962.
    – Raydot
    Commented Dec 27, 2023 at 19:55
  • @Raydot Eichmann was not a prisoner of war because a) the military unit he had been part of had been disbanded b) Israel was not a belligerent, and c) he was abducted from the territory of a neutral third country.
    – Dale M
    Commented Dec 27, 2023 at 20:33

In your specific case, Israel really doesn't have a death penalty. According to Wikipedia, https://en.wikipedia.org/wiki/Capital_punishment_in_Israel, Israel has asked for the death penalty twice, and carried it out once, against Adolf Eichmann.

As a practical matter, there have been several times when Israel soldiers have been accused of "extrajudicial" executions. Several of those soldiers were court martialed, some of them were found guilty and given severe sentences.

War is a horrible thing and it should be avoided if at all possible. That written, the middle east has been at war with itself for thousands of years. I suspect that most of the people who live there have no conception of what it means to live in peace.

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    War is a horrible thing, but your last paragraph doesn't help answer the question.
    – user121330
    Commented Dec 27, 2023 at 20:10
  • "War is a horrible thing" - you are right. This is why I thought that a death penalty for Hamas members only would be both more effective and more humane than bombing buildings with citizens in them. So I wanted to know if it can be done legally. Commented Dec 27, 2023 at 20:23
  • User121330: No, it does not help answer the question, nor was it intended to. Rather, it was a commentary along the lines of, "Sometimes, the question of legal vs. Illegal are irrelevant". The other answers are great answers on a theoretical basis. The Geneva convention is a wonderful idea that just doesn't work well in the real world, much to my regret. redcross.org/content/dam/redcross/atg/PDF_s/… ryGenevaConv.pdf articles 33-34 applies to what Hamas did. Erel Segal-Halevi: It cannot be done under Israeli law. Commented Dec 29, 2023 at 2:49

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