Would the issue not be decided by a panel of officers (tribunal) from the capturing country?
Here are the comments of an English lawyer:
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The better view in my opinion (and this is I believe supported by the other
articles of the Convention dealing with the rights of prisoners in the
context of criminal charges and the general purpose of the convention in
protecting the rights of POWs and other treaties dealing with human rights)
is that it must be judicial in nature and carry on its proceedings in
accordance with "natural justice" - a specific legal term meaning, amongst
other things, that the judge or similar deciding authority must be competent
in the relevant area of law and unbiased, that all parties have the right
to
speak and present all relevant evidence and are entitled to competent
representation if they desire it. This is supported by the use of the term
"tribunal" (rather than, for example, "authority") which, in it's usual
English usage, means a "A court of justice; a judicial assembly" (from the
OED). Certainly under English law any tribunal determining legal matters
(and the status of a person as a POW or not is undeniably a legal matter)
which did not act in accordance with natural justice (and there are numerous
precedents confirming that this applies to military tribunals as much as
civil) would be liable to have it's rulings quashed.
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So, there it goes. The "competent tribunal" is a court of justice (so officers won't do) and it still did not take place.
He also gave me this link:
icrc.org
... where there is some commentary on the "Persons whose status is in doubt" and "competent tribunal":
At Geneva in 1949, it was first proposed that for the sake of precision the term "responsible authority" should be replaced by "military tribunal" (11). This amendment was based on the view that decisions which might have the gravest consequences should Hot be left to a single person, who might often be of subordinate rank. The matter should be taken to a court, as persons taking part in the fight without the right to do so are liable to be prosecuted for murder or attempted murder, and might even be sentenced to capital punishment (12). This suggestion was not unanimously accepted, however, as it was felt that to bring a person before a military tribunal might have more serious consequences than a decision to deprive him of the benefits afforded by the Convention (13). A further amendment was therefore made to the Stockholm text stipulating that a decision regarding persons whose status was in doubt would be taken by a "competent tribunal", and not specifically a military tribunal. |
