Volume Ii Part 18 (1/2)
63-68--Lawrence, -- 164--Maine, pp. 160-167--Manning, pp.
210-222--Phillimore, III. -- 95--Twiss, II. -- 177--Halleck, II. pp.
19-30--Taylor, ---- 519-524--Moore, VII. ---- 1127-1133--Wharton, III.
---- 348-348D--Wheaton, -- 344--Bluntschli, ---- 593-626--Heffter, ---- 127-129--Lueder in Holtzendorff, IV. pp. 423-445--Ullmann, -- 177--Bonfils, Nos. 1119-1140--Despagnet, Nos.
544-550--Pradier-Fodere, VII. Nos. 2796-2842, and VIII. No.
3208--Rivier, II. pp. 273-279--Nys, III. pp. 537-553--Calvo, IV.
---- 2133-2157--Fiore, III. Nos. 1355-1362, and Code, Nos.
1567-1588--Martens, II. -- 113--Longuet, ---- 77-83--Merignhac, pp.
87-113--Pillet, pp. 145-164--_Kriegsbrauch_, pp. 11-18--Zorn, pp.
73-123--Bordwell, pp. 237-248--_Land Warfare_, ---- 54-116--Spaight, pp. 260-320--Holland, _War_, Nos. 24-40--Eichelmann, _uber die Kriegsgefangenschaft_ (1878)--Romberg, _Des belligerants et des prisonniers de guerre_ (1894)--Triepel, _Die neuesten Fortschritte auf dem Gebiet des Kriegsrechts_ (1894), pp. 41-55--Holls, _The Peace Conference at the Hague_ (1900), pp. 145-151--Cros, _Condition et traitement des prisonniers de guerre_ (1900)--Beinhauer, _Die Kriegsgefangenschaft_ (1910)--Payrat, _Le prisonnier de guerre dans la guerre continentale_ (1910).
[Sidenote: Development of International Law regarding Captivity.]
-- 125. During antiquity, prisoners of war could be killed, and they were very often at once actually butchered or offered as sacrifices to the G.o.ds. If they were spared, they were as a rule made slaves and only exceptionally liberated. But belligerents also exchanged their prisoners or liberated them for ransom. During the first part of the Middle Ages prisoners of war could likewise be killed or made slaves. Under the influence of Christianity, however, their fate in time became mitigated.
Although they were often most cruelly treated during the second part of the Middle Ages, they were not as a rule killed and, with the disappearance of slavery in Europe, they were no longer enslaved. By the time modern International Law gradually came into existence, killing and enslaving prisoners of war had disappeared, but they were still often treated as criminals and as objects of personal revenge. They were not considered in the power of the State by whose forces they were captured, but in the power of those very forces or of the individual soldiers that had made the capture. And it was considered lawful on the part of captors to make as much profit as possible out of their prisoners by way of ransom, provided no exchange of prisoners took place. So general was this practice that a more or less definite scale of ransom became usual.
Thus, Grotius (III. c. 14, -- 9) mentions that in his time the ransom of a private was the amount of his one month's pay. And since the pecuniary value of a prisoner as regards ransom rose in proportion with his fortune and his position in life and in the enemy army, it became usual for prisoners of rank and note not to belong to the capturing forces but to the Sovereign, who had, however, to recompense the captors. During the seventeenth century, the custom that prisoners were considered in the power of their captors died away. They were now considered to be in the power of the Sovereign by whose forces they were captured. But rules of the Law of Nations regarding their proper treatment were hardly in existence. The practice of liberating prisoners in exchange, or for ransom only, continued. Special cartels were often concluded at the outbreak of or during a war for the purpose of stipulating a scale of ransom according to which either belligerent could redeem his soldiers and officers from captivity. The last[256] instance of such cartels is that between England and France in 1780, stipulating the ransom for members of the naval and military forces of both belligerents.
[Footnote 256: See Hall, -- 134, p. 428, note 1.]
It was not until the eighteenth century, with its general tendencies to mitigate the cruel practices of warfare, that matters changed for the better. The conviction in time became general that captivity should only be the means of preventing prisoners from returning to their corps and taking up arms again, and should, as a matter of principle, be distinguished from imprisonment as a punishment for crimes. The Treaty of Friends.h.i.+p[257] concluded in 1785 between Prussia and the United States of America was probably the first to stipulate (article 24) the proper treatment of prisoners of war, prohibiting confinement in convict prisons and the use of irons, and insisting upon their confinement in a healthy place, where they may have exercise, and where they may be kept and fed as troops. During the nineteenth century the principle that prisoners of war should be treated by their captor in a manner a.n.a.logous to that meted out to his own troops became generally recognised, and the Hague Regulations have now, by articles 4 to 20, enacted exhaustive rules regarding captivity.
[Footnote 257: See Martens, _N.R._ IV. p. 37.]
[Sidenote: Treatment of Prisoners of War.]
-- 126. According to articles 4-7 and 16-19 of the Hague Regulations prisoners of war are not in the power of the individuals or corps who capture them, but in the power of the Government of the captor. They must be humanely treated. All their personal belongings remain their property, with the exception of arms, horses, and military papers, which are booty;[258] and in practice[259] personal belongings are understood to include military uniform, clothing, and kit required for personal use, although technically they are Government property. They may only be imprisoned as an unavoidable matter of safety, and only while the circ.u.mstances which necessitate the measure continue to exist. They may, therefore, be detained in a town, fortress, camp, or any other locality, and they may be bound not to go beyond a certain fixed boundary. But they may not be kept in convict prisons. Except in the case of officers, their labour may be utilised by the Government according to their rank and apt.i.tude, but their tasks must not be excessive and must have nothing to do with military operations. Work done by them for the State must be paid for in accordance with tariffs in force for soldiers of the national army employed on similar tasks, or, in case there are no such tariffs in force, at rates proportional to the work executed. But prisoners of war may also be authorised to work for other branches of the public service or for private persons under conditions of employment to be settled by the military authorities, and they may likewise be authorised to work on their own account. All wages they receive go towards improving their position, and a balance must be paid to them at the time of their release, after deducting the cost of their maintenance. But whether they earn wages or not, the Government is bound under all circ.u.mstances to maintain them, and provide quarters, food, and clothing for them on the same footing as for its own troops. Officer prisoners must receive the same pay as officers of corresponding rank in the country where they are detained, the amount to be repaid by their Government after the conclusion of peace. All prisoners of war must enjoy every lat.i.tude in the exercise of their religion, including attendance at their own church service, provided only they comply with the regulations for order issued by the military authorities. If a prisoner wants to make a will, it must be received by the authorities or drawn up on the same conditions as for soldiers of the national army.
And the same rules are valid regarding death certificates and the burial of prisoners of war, and due regard must be paid to their grade and rank. Letters, money orders, valuables, and postal parcels destined for or despatched by prisoners of war must enjoy free postage, and gifts and relief in kind for prisoners of war must be admitted free from all custom and other duties as well as payments for carriage by Government railways (article 16).
[Footnote 258: See below, -- 144.]
[Footnote 259: See _Land Warfare_, -- 69.]
[Sidenote: Who may claim to be Prisoners of War.]
-- 127. Every individual who is deprived of his liberty not for a crime but for military reasons has a claim to be treated as a prisoner of war.
Article 13 of the Hague Regulations expressly enacts that non-combatant[260] members of armed forces, such as newspaper correspondents, reporters, sutlers, contractors, who are captured and detained, may claim to be treated as prisoners of war, provided they can produce a certificate from the military authorities of the army they were accompanying. But although the Hague Regulations do not contain anything regarding the treatment of private enemy individuals and enemy officials whom a belligerent thinks it necessary[261] to make prisoners of war, it is evident that they may claim all privileges of such prisoners. Such individuals are not convicts; they are taken into captivity for military reasons, and they are therefore prisoners of war.
[Footnote 260: See above, -- 79.]
[Footnote 261: See above, ---- 116 and 117.]
[Sidenote: Discipline.]
-- 128. Articles 8 and 9 of the Hague Regulations lay down the discipline to be observed in the case of prisoners of war in the following way:--Every prisoner who, if questioned, does not declare his true name and rank is liable to a curtailment of the advantages accorded to prisoners of his cla.s.s. All prisoners are subject to the laws, regulations, and orders in force in the army of the belligerent that keeps them in captivity. Any act of insubordination on the part of prisoners may be punished in accordance with these laws,[262] but apart from these laws, all kinds of severe measures are admissible to prevent a repet.i.tion of such acts. Escaped prisoners, who, after having rejoined their national army, are again taken prisoners, are not liable to any punishment for their flight. But if they are recaptured before they succeed in rejoining their army, or before they have quitted the territory occupied by the capturing forces, they are liable to disciplinary punishment.
[Footnote 262: Concerning the question whether after conclusion of peace such prisoners as are undergoing a term of imprisonment for offences against discipline may be detained, see below, -- 275.]
[Sidenote: Release on Parole.]