The trial of prisoners of war by military courts in modern armed conflicts
Contemporary challenges to the laws of war : essays in honour of professor Peter Rowe
Cambridge : Cambridge University Press, 2014
Under Geneva Convention III 1949, States have the obligation to ensure that POWs are tried by 'the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power’. The court envisaged is a military court and the Convention goes on to provide that such a court must ‘offer the essential guarantees of independence and impartiality as generally recognised’. If a state is unable to provide an independent and impartial military court to try members of its own armed forces, it will fail to comply with its obligations under Geneva Convention III 1949 should it be faced with the need to try a prisoner of war for a crime committed before, or after, capture. On becoming parties to the Geneva Conventions 1949 it is unlikely that states considered the relevance of the form in which their own military courst operate in peacetime. No state would wish to admit that, should the situation arise, it would be unable to comply with its obligations under GCIII. Nevertheless, it may have to do so unless it can provide an independent and impartial military court for members of its own armed forces, before any international armed conflict, in which it is involved, takes place. This chapter considers how a military court could comply with the requiremetns of Geneva Convention III, should it be called upon to try a POW, and the consequences of failing to do so. It also addresses the relationship between IHL and international human rights law in this context.
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