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Right to a fair trial when no crime is alleged

Soldiers, as prisoners of war, will not receive a trial unless the allegation of a war crime has been made. According to article 43 of the 1949 Conventions, soldiers are employed for the purpose of serving in war; engaging in armed conflict is legitimate, and does not constitute a grave breach. Should a soldier be arrested by belligerent forces, they are to be considered "lawful combatants" and afforded the protectorate status of a prisoner of war (POW) until the cessation of the conflict. Human rights law applies to any incarcerated individual, including the right to a fair trial.

Charges may only be brought against an enemy POW after a fair trial, but the initial crime being accused must be an explicit violation of the accords, more severe than simply fighting against the captor in battle. No trial will otherwise be afforded to a captured soldier, as deemed by human rights law. This element of the convention has been confused during past incidents of detainment of US soldiers by North Vietnam, where the regime attempted to try all imprisoned soldiers in court for committing grave breaches, on the incorrect assumption that their sole existence as enemies of the state violated international law.