Harvard international law journal, Vol. 45, no. 2, Summer 2004, p. 367-442
Photocopies. - Source : http://www.harvardilj.org/wp-content/uploads/2011/04/HILJ_45-2_Jinks.pdf (last accessed on 10.05.2011)
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.