Table of contents:
6. Such person or persons were in the power of an adverse party.
P.31. Evidence of being the territory under the control of or occupied by an adverse power.
P.32. Evidence of falling into the power of the enemy.
P.33. Evidence of required timeframe for being in the power of the adverse party.
P.34. Evidence of extermination and persecution of the group by the power in question.
Element:
6. Such person or persons were in the power of an adverse party.
P.31. Evidence of being the territory under the control of or occupied by an adverse power.
A. Evidentiary comment:
According to the ICRC Commentary to article 11 of Additional Protocol I, the concept of "person in power of an adverse party" encompasses mainly:
Prisoners of war, civil internees, persons who have been refused authorization to leave the territory of the adverse Party, and even all persons belonging to a Party to the conflict who simply find themselves in the territory of the adverse party. The term territories of the adverse party is used to mean the territory in which this Party exercises public authority de facto .Finally, the inhabitants of the territory occupied by the adverse Party are also in the power of this adverse Party. [Y. Sandoz, "Article 11" in Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, no. 478.]
P.32. Evidence of falling into the power of the enemy.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, footnote. 569:
"569. The expression fallen into the power of the enemy has a wide significance and covers the case of soldiers who became prisoners without fighting, for example following surrender. Commentary to Geneva Convention IV, p 10."
P.33. Evidence of required timeframe for being in the power of the adverse party.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 568:
"209. Article 4 of Geneva Convention III protects prisoners of war, i.e. persons who have fallen into the power of the enemy569 and belong to one of the specified categories listed in Article 4.570 Article 5 of Geneva Convention III states that prisoners of war are protected "from the time they fall into the power of the enemy and until their final release and repatriation."571
569 The expression "fallen into the power of the enemy" has a wide significance and covers the case of soldiers who became prisoners without fighting, for example following a surrender. Commentary to Geneva Convention IV, p 10.
570 Article 4 of Geneva Convention III provides: "(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organised resistance movements, fulfil the following conditions: (a) that of being
commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognisable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a government or an authority not recognised by the Detaining Power. (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of
labour units or of services responsible for the welfare of the armed forces, provided that they have received authorisation from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. (6) Inhabitants of a non-occupied territory, who on the
approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."
571 Article 5 of Geneva Convention III.
P.34. Evidence of extermination and persecution of the group by the power in question.
A. Legal source/authority and evidence:
Josef Altst?tter, Judgment Nuremberg Tribunal, Law Reports of Trials of War Criminals, Selected and prepared by the United Nations War Crimes Commission, Vol. VII, para. 4(iii), page 10:
"The evidence also revealed the existence under Hitlers rule of a plan for the persecution and extermination of Jews and Poles, either by means of killing or confinement in concentration camps, which often involved the death of the victims. Lesser forms of racial discrimination were also practiced by the governmental authority and was shown to have constituted an integral part of the policy of the Reich."
P.35. Evidence of being a prisoner of war.
A. Legal source/authority and evidence:
Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-T, Judgement (TC), 16 November 1998, paras. 238-239:
"238. Article 4(A) of the Third Geneva Convention defines those who are subject to its protection in the following terms:
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognisable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
239. Thus, the Prosecution maintains that the victims of the acts alleged in the Indictment were either non-combatants linked to one side in an international armed conflict and in the hands of the other side to that conflict, or prisoners of war from one side in the conflict, detained by the other side. Due to the nature of the crimes charged, the Prosecution deems it irrelevant which of the two Conventions is applied, except in relation to the charge of unlawful confinement of civilians."
B. Evidentiary comment:
Not only the persons described above fall within this category. The narrowing down is rather made in other elements, while this element is to be construed broadly.
