Chinese Journal of International Law Advance Access published online on June 20, 2009
Chinese Journal of International Law, doi:10.1093/chinesejil/jmp016
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© The Author 2009. Published by Oxford University Press. All rights reserved
The Relevancy of Nationality to the Right to Prisoner of War Status
Correspondence: * JM (Tsinghua); LLB (HKU). Legal Program Officer of International Bridges to Justice, an international NGO (email: xiejh05{at}mails.thu.edu.cn). This paper is based on the author's graduation thesis, under the supervision of Prof. JIA Bingbing, Tsinghua University. The author is indebted to Prof. Jia for his guidance throughout the entire process of drafting. The author's special thanks are also due to Ethan Blevins for his valuable comments on this article. This paper was completed on 14 May 2009.
In 1960, the Privy Council of the United Kingdom, in Public Prosecutor v. Oie Hee Koi and connected appeal, 1 refused to recognize the prisoner of war (POW) status of some of its citizens who were captured while acting as members of the opposing forces in hostilities because they had breached their duty of allegiance owed to the Crown. The purpose of this article is to prove that it defies the spirit of the Geneva Conventions (GCs) as well as the development of international humanitarian law to deprive a national of the detaining power of his POW status solely on the basis of nationality or duty of allegiance. The first half of this article shows that the non-allegiance requirement of POW status is not sustainable; the second part demonstrates that the object and purpose of humanitarian law require such nationals to be covered by GC III.