Prisoners of War

prisoners of war, in international law, persons captured by a belligerent while fighting in the military. International law includes rules on the treatment of prisoners of war but extends protection only to combatants. This excludes civilians who engage in hostilities (by international law they are war criminals; see war crimes) and forces that do not observe conventional requirements for combatants (see war, laws of).

Historical Attitudes toward Prisoners of War

Attitudes toward prisoners of war have changed over time. Originally slaughtered, captives were later considered war booty. The captor still held life-and-death power, but it became more useful to make slaves of the prisoners. In feudal Europe the nobles were ransomed, and the Ottoman Empire and the Barbary States generally ransomed their Christian captives.

The basis of the modern treatment of prisoners of war was stated by Montesquieu in De l'esprit des lois and by J. J. Rousseau in his Social Contract; both held that the right of the captor over the prisoner was limited to preventing him from taking up arms again and ceased altogether with the end of hostilities. Their view was elaborated by Emerich de Vattel. During the American Civil War, Francis Lieber drew up the first systematic, written regulations on the treatment of prisoners of war.

The first international convention on prisoners of war was signed at the Hague Peace Conference of 1899. It was widened by the Hague Convention of 1907. These rules proved insufficient in World War I, and the International Red Cross proposed a more complete code.

The 1929 Geneva Convention

In 1929 the Geneva Convention Relative to the Treatment of Prisoners of War was signed by 47 governments. Chief among the nations that did not adhere to the Geneva Convention of 1929 were Japan and the USSR. Japan, however, gave a qualified promise (1942) to abide by the Geneva rules, and the USSR announced (1941) that it would observe the terms of the Hague Convention of 1907, which did not provide (as does the Geneva Convention) for neutral inspection of prison camps, for the exchange of prisoners' names, and for correspondence with prisoners.

According to the Geneva Convention no prisoner of war could be forced to disclose to his captor any information other than his identity (i.e., his name and rank, but not his military unit, home town, or address of relatives). Every prisoner of war was entitled to adequate food and medical care and had the right to exchange correspondence and receive parcels. He was required to observe ordinary military discipline and courtesy, but he could attempt to escape at his own risk. Once recaptured, he was not to be punished for his attempt. Officers were to receive pay either according to the pay scale of their own country or to that of their captor, whichever was less; they could not be required to work. Enlisted men might be required to work for pay, but the nature and location of their work were not to expose them to danger, and in no case could they be required to perform work directly related to military operations. Camps were to be open to inspection by authorized representatives of a neutral power.

In World War II, Switzerland and Sweden acted as protecting powers. The International Red Cross at Geneva acted as a clearinghouse for the exchange of all information regarding prisoners of war and had charge of transmitting correspondence and parcels. With minor and inevitable exceptions on the lower levels, the United States and Great Britain generally honored the Geneva Convention throughout the conflict. Japan at first committed such atrocities as the "death march of Bataan," but began to abide by the rules after a sufficient number of Japanese prisoners had fallen into Allied hands to make reprisals possible. Germany did not treat all its prisoners alike. Americans and British subjects received the best treatment, Polish prisoners the worst.

The 1949 Geneva Convention

The changed methods of warfare in World War II, the maltreatment of prisoners of war that constituted an important part of the war crimes indictments, and the retention of a great number of German prisoners of war by the USSR for several years after the war showed that the 1929 Convention required revision on many points. A new convention, reaffirming and supplementing the 1929 Convention, was signed at Geneva in 1949 and subsequently ratified by almost all nations. It broadened the categories of persons entitled to prisoner-of-war status, clearly redefined the conditions of captivity, and reaffirmed the principle of immediate release and repatriation at the end of hostilities.

Although the North Koreans promised to respect the Geneva Convention in the Korean War, they refused to recognize the impartial status of the Red Cross and denied it access to the territory they controlled. The unprecedented refusal of prisoners to be repatriated, moreover, established a new principle of political asylum for prisoners of war. The governments of North and South Vietnam, parties to the 1949 Geneva Convention, were charged with violating it in the Vietnam War—the North by not permitting full reporting, correspondence, and neutral inspection, and the South by allegedly torturing captives and placing them in inhumane prisons. The national anguish over the Vietnam War was extended for decades after the war's end in part because of the lack of resolution over the POW and MIA (missing in action) issue. While the Pentagon's MIA list still contains names of missing servicemen, the last official prisoner of war was declared dead in 1994.

Combatants captured and held by the United States as a result of its operations in Afghanistan against the Taliban government and Al Qaeda forces were not recognized as as prisoners of war by the Bush administration and were termed "unlawful combatants" instead. This decision was criticized by human rights groups as a failure to abide by international law, and drew criticism from the International Committee of the Red Cross (ICRC) as well. In June, 2004, the U.S. Supreme Court ruled that these prisoners, which the Bush administration had claimed it could hold indefinitely (most them at the Guantánamo, Cuba, naval base), had the right to challenge their detention.

A month before the ruling, U.S. prestige had suffered a significant blow when it was revealed that U.S. forces had abused Iraqi prisoners in 2003–4. Later revelations suggested that the abuse may have been an outgrowth of U.S. prisoner policy in place since the 2001 terror attacks on the United States, and the ICRC expressed concern that the United States might be continuing to hide prisoners from it, as had been attempted in Iraq. The ICRC subsequently privately charged that U.S. treatment of some prisoners at Guantánamo was "tantamount to torture." Also in 2004 the Bush administration determined that some non-Iraqi prisoners captured in Iraq were not subject to the Geneva Conventions, and that such prisoners could be transferred out of Iraq, as the CIA secretly had done with a small number of prisoners since 2003.

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Prisoners of War 

in international law, members of the armed forces of a fighting side (including voluntary detachments of partisan armies, members of rebellious movements, and other combatants) who find themselves captured by the enemy. Sometimes, however, prisoners of war are noncombatants—for example, war correspondents, merchant marine sailors, and members of civil aviation.

Until the second half of the 19th century, international law did not include any multilateral agreements establishing regulations for prisoner-of-war camps. The first convention on the laws and rules of land warfare, which established regulations for prisoner-of-war camps, was adopted in 1899 at the First Hague Peace Conference. The Second Hague Peace Conference in 1907 worked out a new convention that out-lined more detailed rules for holding prisoners of war. World War I (1914-18) demonstrated the necessity for further development of prisoner-of-war camp standards, and in 1929 the Geneva Convention on Prisoners of War was accepted. (The USSR did not participate in it.)

During World War II, fascist Germany, which had violated international convention, subjected prisoners of war to torture and mass murder. In an attempt to prevent the arbitrary decisions of belligerents, a Geneva convention on the treatment of prisoners of war that leaned toward more humanitarian regulations of war was worked out and signed in 1949 under the sponsorship of socialist governments and democratic world powers. Because of the efforts of the USSR and other socialist countries, this convention included some new principles—for example, it forbade discrimination against prisoners of war because of race, color, religion, sex, nationality, or property status; and it established criminal responsibility for breaking the statutes of the convention. An extremely important innovation was the application of convention statutes to civil wars and national wars of liberation. Therefore, the basic conventions containing regulations for prisoner-of-war camps are the Laws and Customs of War on Land (appendix to the Fourth Hague Convention of 1907) and the 1949 Geneva Convention on the Treatment of Prisoners of War.

In agreement with generally accepted norms of current international law, prisoners of war are held by the enemy state, not by individuals or the military divisions responsible for their capture. The treatment of prisoners of war must be humanitarian and without discrimination in all situations. The convention ensures due respect to female prisoners. Taking the lives of prisoners of war, doing them bodily harm (killing, mutilation, cruel treatment, torment, or torture), or demeaning their dignity by insult and belittling is forbidden. A prisoner of war may not be subjected to physical crippling or scientific or medical experimentation unless such action is warranted as medical treatment.

The government holding prisoners of war is responsible for supporting them free of charge and giving them necessary medical attention; the prisoners of war are entitled to food, living quarters, and clothing similar to those of their captors’ army. All personal belongings of the prisoners of war except for weapons, military property, and military documents may remain in their possession. Prisoners of war have complete freedom of religious choice; they are allowed to send and receive mail, individual or collective parcels, and money orders. Prisoners of war (excluding officers) may be employed in activities unrelated to war; they may not be ordered to do work that is dangerous or threatening to their health without their consent. All work performed by prisoners of war must be compensated; part of the salary is used for the support of the prisoner, and the rest is released to him upon his freedom.

Prisoners of war must obey the laws, statutes, and orders affecting the military bodies of the government which is holding them captive; if these laws are not obeyed, legal and disciplinary measures may be taken. (Group punishment for an individual’s crime is forbidden.) They may not be tried or convicted for actions which are not considered criminal by the government holding them captive, nor may any form of punishment be applied to them that is not ordinarily applied to any military personnel of the government for similar deeds. Attempts to escape are punishable only by disciplinary action. All illegal acts, as well as inactivity on the part of the government holding the prisoners, resulting in death or a threat to the health of prisoners, are forbidden and considered to be in direct violation of the convention. Persons guilty of such crimes are regarded as military offenders and are subject to legal prosecution.

In 1958 a law was passed in the USSR on the legal responsibility for war crimes, establishing severe punishment for those who break the laws regarding prisoners of war.

Imperialistic governments have often violated and still violate the accepted norms of international law regarding prisoners of war (for example, mass murders of prisoners of war by fascist Germany during World War II and the premeditated annihilation of prisoners of war of the armed forces of the National Liberation Front of South Vietnam by American forces in the criminal war against the Vietnamese people.

REFERENCES

“Konventsiia o zakonakh i obychaiakh sukhoputnoi voiny ot 5 (18) okt. 1907 g.” In Mezhdunarodnoe pravo v izbrannykh dokumentakh, vol. 3. Moscow, 1957. Pages 41-46.
“Zhenevskaia konventsiia ob obrashchenii s voennoplennymi ot 12 avg. 1949 g.” InZhenevskie konventsii o zashchite zhertv voiny. Moscow, 1954. Pages 69-129.
Mezhdunarodnoe pravo. Moscow, 1966, Page 617.

M. N. ANDRIUKHIN