5cjxburmr

The person need not have been captured to have “fallen” into the power of the enemy; itmay be the case that he or she became a prisoner without fighting, e.g., by surrendering. 64Although defectors serving with their new armed force may be viewed as being in “thepower of the enemy,” they are not regarded as “hav[ing] fallen into” that condition, since theyhave voluntarily chosen to switch sides. 65 Thus, defectors are not considered by their new armedforces to be entitled to POW status. 669.3.4.2 Into the Power. A person is considered to have fallen into the power ofthe enemy when that person has been captured by, or surrendered to, members of the militaryforces, the civilian police, or local civilian defense organizations or other enemy civilians whohave taken that person into custody. 67 The person need not be captured by the armed forces ofthe opposing State.9.3.4.3 Of the Enemy. Persons who have been captured by States that are notadversaries in the armed conflict are not technically in the hands of the enemy. 68 However,persons who are entitled to POW status or treatment and are interned by a neutral State under itsduties under international law are generally entitled to POW treatment, as a minimum, underArticle 4B(2) of the GPW. 69 Similarly, for example, military forces engaged in peace operationswho are detained by the forces of a State that is a party to a conflict should, at a minimum, beafforded POW treatment by analogy.9.3.5 Treatment and Determination of POW Status in Case of Doubt. Should any doubtarise as to whether persons, having committed a belligerent act and having fallen into the handsof the enemy, belong to any of the categories enumerated in Article 4 of the GPW, such persons64 GPW COMMENTARY 50 (“The words ‘fallen into the power of the enemy’ replace the word ‘captured’ whichappeared in the 1929 Convention, the first expression having a wider significance and also covering the case ofsoldiers who became prisoners without fighting, for example following a surrender.”).65 See U.N. GENERAL ASSEMBLY, Report of the Secretary-General: Respect for Human Rights in Armed Conflicts,U.N. Doc. A/7720 88 (Nov. 20, 1969) (“One of the requirements of the acquisition of prisoner of war status is thatthe persons concerned must ‘have fallen into the power of the enemy.’ The view has been expressed that personswho defect from their own forces and give themselves up to the enemy and therefore do not have prisoner of warstatus, are not subject to the provisions of Geneva Convention III and are therefore neither entitled to the rights norbound by the obligations of prisoners of war.”); 1958 UK MANUAL 126 note 1 (“Defectors are not considered tohave ‘fallen’ into the power of the enemy within the meaning of Art. 4A. … The term ‘fallen’ clearly shows that itconcerns combatants who pass into enemy hands, not of their own free will but by a force beyond their controlbecause they are under its restraint,’”).66 Refer to § 4.5.2.6 (Defectors).67 1956 FM 27-10 (Change No. 1 1976) 84b (“A person is considered to have fallen into the power of the enemywhen he has been captured by, or surrendered to members of the military forces, the civilian police, or local civiliandefense organizations or enemy civilians who have taken him into custody.”).68 See GPW COMMENTARY 50 (“The existence of a state of belligerence is no longer officially in question; the term‘enemy’ covers any adversary during an ‘armed conflict which may arise between two or more of the HighContracting Parties’ pursuant to the first paragraph of Article 2.”).69 Refer to § 15.16.3.1 (Provision of POW Treatment and Application of the GWS and GWS-Sea by Analogy).520