Prisoners and War Summary

  • Last updated on November 11, 2022

The four Geneva Conventions of 1949 and their Protocol I of 1977 constitute the legislation covering the protection of war victims.

Overview

The four Geneva Conventions of 1949 and their Protocol I (Geneva Conventions)[Protocol 01]Protocol I of 1977 constitute the legislation covering the protection of war victims. Lawful combatants“Lawful combatants” who fall into the hands of the enemy either because they surrender or because they are wounded, sick, or shipwrecked have entitlement to the status of prisoners of war. The capturers must intern them in prisoner-of-war camps, which must be located far from the combat zone. The capturers must hold prisoners in good health and treat them humanely. Prisoners also have a set of rights, which the Third Geneva Convention spells out in detail–for example, against violence, intimidation, or insult.Prisoners of warCombatants (defined)Prisoners of warGeneva Conventions;prisoners of warCombatants (defined)

Indian prisoners are marched away from their homeland by U.S. troops under the command of General George Custer. The U.S. warfare against and removal of Native Americans throughout the nation constituted one of the most shameful legacies of American history.

(Library of Congress)
Significance

The recognition of individuals having rights as prisoners of war has evolved along with the changing nature of warfare and more broadly with the recognition and development of universal individual human rights.

History of Prisoners of WarAncient World

Economies of the classical world had Slaves;as war booty[booty]slave labor as their basis. A person’s wealth and status typically corresponded to the number of slaves he or she owned. Prisoners constituted booty from war and had value as such; they were considered loot and became chattel. Prisoners were therefore kept alive because they were valuable, but they had no rights. They were tools with voices.

Medieval World

The Chivalrychivalric code in Feudalismfeudalism was a system of rules regulating behavior between the nobility, including their treatment as prisoners of war. Nobles captured in battle were valuable hostages who could be ransomed by their fiefdoms. The members of lower social orders captured in war who had no access to economic resources for their own ransom therefore had no rights, were a burden, and were treated as such.

Modern World

Until the modern era, the devices available for mutual enforcement of the traditional laws of warfare included Belligerent reprisals“belligerent reprisals” (a reprisal is a breach of international law by one state in return for another breach). This barbaric instrument included maltreatment of prisoners of war. Belligerent reprisals against prisoners of war and innocent civilians are now universally illegal but still frequently occur.

Article 4 of the Third Geneva Convention relative to the treatment of prisoners was ratified in Geneva, Switzerland, on August 12, 1949, and entered into force generally on October 21, 1950. It defines “prisoners of war” as persons belonging to one of the following categories, who have fallen into “the power of the enemy”:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of carrying arms openly; (d) That of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model [sic].

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favorable treatment under any other provisions of international law.

(6) Inhabitants of a nonoccupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

According to legal scholar Antonio Cassese, in its decision in the case of Kupreskic et al. (2000) Kupreskic et al. the International Criminal Tribunal for the Former Yugoslavia International Criminal Tribunal for the former Yugoslavia (ICTY, 2000) restated, and the international community widely accepts, that the 1949 Geneva Conventions lay down universal, international community obligations. Article 1, which is common to all four Conventions, obliges any state “contracting Party” to the Geneva Conventions “to respect and ensure respect” for the Conventions “in all circumstances.” All states are under obligation to demand cessation of serious violation of the Conventions, as well as to demand punishment of the culprits, even if not directly engaged as belligerents in the conflict.

Other forms of “grave breaches” of the laws of warfare in the Geneva Conventions include refusing quarter to peoples wanting to surrender, the use of weapons that international law prohibits, and the torture of captured enemies in order to obtain information. Typically only international tribunals or the national jurisdiction of the adversary prosecutes systematic, grave breaches, also called “system criminality.”

The Conventions institute the requirement that the countries that have signed on to the Conventions, known as States parties to the Geneva Conventionsstates parties, act to repress systematic criminality occurring anywhere. This instrument involves the condemnation of an entire system of government for misbehavior involving the highest authorities in place in a country. No state legal system used this legal instrument until forty years after it came into force. States parties began resorting to it subsequent to the work of the ICTY and theInternational Criminal Tribunal for Rwanda International Criminal Tribunal for Rwanda in the 1990’s. Still, national courts have refrained from claiming universal jurisdiction over systematic violations of the Conventions regarding treatment of prisoners of war, wherever they occur. They have confined themselves to the more traditional, territorial forms of their jurisdiction in practice for prosecuting grave breaches of the Geneva Conventions, using universal jurisdiction only if the state of a court had enacted national legislation that allows it.

A U.S. POW is interrogated by a North Vietnamese officer in 1973, during the Vietnam War.

(U.S. Department of Defense)

The development of traditional international law historically shows that the interest of the Great PowersGreat Powers has been to exclude from the category of Lawful combatants“lawful combatants” any person who is not a member of a regular army. Since the second half of the twentieth century began, the Great Powers have fought numerous “brushfire” wars, where their large, professional, standing armies invade a smaller country, usually defended by “irregular” or “insurgent” forces. During the nineteenth century, small and medium-sized powers demanded international legal concessions to recognize the role of militias and volunteer corps, as well as for the entire civilian populations, as lawful combatants. They thereby succeeded in preventing the Great Powers from obtaining sovereign rights over the territory the Great Power had invaded, since control of the territory was often still contested by an irregular, but legally recognized, fighting force.

This compromise granted the status of lawful combatant not only to regular armies but also to militias and volunteer corps. For combatants from a Levée en masse (French draft)[Levee en masse]levée en masse–those who spontaneously take up arms to resist an invading army without the time to organize themselves–only two conditions are necessary to be a lawful combatant and therefore to hold rights as a prisoner of war: (1) to carry arms openly, and (2) to respect the laws and customs of war, including clear visible differentiation of military personnel from the civilian population.

Until World War II, mainly regular armies fought wars. In 1949, the Third Geneva Convention added in Article 4.A.2 a new category of irregular, lawful combatant holding the right to prisoner-of-war status: Partisanspartisans, that is, “organized resistance movements, belonging to a party to the conflict and operating in or outside their own territory, even if this territory is occupied”; partisans must have a direct link to a party in the conflict.

An Iraqi POW at Abu Ghraib prison in Baghdad was forced to stand on a box, arms outstretched, in one of several cases of abusive treatment later litigated under the Uniform Code of Military Justice.

(AP/Wide World Photos)

The legal debate over irregular, guerrilla fighters became particularly important after 1949, with the rise of Guerrilla warfareguerrilla warfare within the framework of interstate wars or wars of national liberation. The debate led the 1974-1977 Geneva Convention negotiations to adopt a compromise formula: The combatants also “are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack” (Article 44.3, first sentence). This formula relaxes the “distinction from civilians” requirement, instead allowing the mere wearing of an insignia or any outward token, along with the open carrying of weapons, to signify combatant status. These requirements can be met either during or immediately prior to an attack. If combatants fail to fulfill the insignia or weapons-bearing requirement, they are still entitled to prisoner-of-war treatment, but they become vulnerable to punishment for violating Article 44.3.

The 1977 Protocol I (Geneva Conventions)[Protocol 01]protocol relaxed these requirements further with regard to such situations asWars of national liberation“wars of national liberation” andMilitary occupation“military occupation.” In these situations, the second sentence of Article 44.3 requests only that a combatant carry arms openly “(a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is able to participate.” If combatants are not satisfying the second sentence of Article 44.3, and the opposing forces capture them in the course of a war of national liberation or in territory under occupation, they then forfeit their status of lawful combatants and therefore cannot enjoy prisoner-of-war treatment. Therefore, someone who hides a gun and draws it to fire on occupying soldiers loses prisoner-of-war status if he or she was, in fact, part of a military operation. If the combatant is a disguised, failed Suicide bombingssuicide bomber as part of a planned military operation, then he or she also logically loses prisoner-of-war status. By contrast, if the combatant acted spontaneously and on his or her own, then he or she still receives prisoner-of-war status.

The adoption of Article 47 at the Geneva Conference (leading to the 1977 Protocol) constituted official recognition in paragraph 1 that Mercenaries;Geneva Conference definition“a mercenary shall not have the right to be a combatant or a prisoner of war.” The definition of prisoners of war came under challenge with the development of the concept of “unlawful combatant” to refer to irregulars who refuse to wear identification markers or who openly carry weapons in order to identify and differentiate themselves from the civilian population. As a result, the claim of the U.S. government during the administration of President Terrorists;prisoner-of-war statusGeorge W. Bush was that such prisoners did not have prisoner-of-war status under the Geneva Conventions. Granting this status would also imply granting political recognition to the political authorities on behalf of whom they were agents. To ensure that they were not subject to U.S. legal state responsibility to adhere to the Geneva Conventions in their treatment, many were interned at Guantánamo Bay;prisoner status Guantánamo Bay, Cuba, to keep them outside U.S. territorial legal jurisdiction.

For the purpose of safeguarding their interests and impelling adversaries to abide by international law, including treatment of their prisoners of war, the 1949 Geneva Conventions codified and improved on international practice with regard to the designation of Protecting Powers (Geneva Conventions)“Protecting Powers” by belligerents for ensuring humanitarian treatment of their prisoners. Traditionally, each of the belligerents could appoint a third state as a Protecting Power, but the consent of both belligerents was necessary. An advance of the 1949 Convention was in the provision for “Substitutes for the Protecting Powers,” declaring that the Detaining Power (the state detaining the enemy wounded, shipwrecked, prisoners of war, or civilians) is under the obligation to accept “the offer of the services of a humanitarian organization, such as the International Committee of the Red Cross, to assume the humanitarian functions performed by Protecting Powers under the present Convention.”Prisoners of warGeneva Conventions;prisoners of warCombatants (defined)

Books and Articles
  • Burrows, Edwin G. Forgotten Patriots: The Untold Story of American Prisoners During the Revolutionary War. New York: Basic Books, 2008. Tells the story of the approximately twenty-five thousand members of the Continental Army who were held as prisoners of war in New York City. Estimates are that some 70 percent of those prisoners died, totaling more than the number of soldiers who died in battle.
  • Gillispie, James M. Andersonvilles of the North: The Myths and Realities of Northern Treatment of Civil War Confederate Prisoners. Denton: University of North Texas Press, 2008. Both Southern and Northern captors held large numbers of prisoners of war during the Civil War and were vilified by those they held. This study does for Northern captors what other studies have done for places like the Southern prison at Andersonville: It shows that they were far less cruel and oppressive than their image.
  • Krammer, Arnold. Prisoners of War: A Reference Handbook. Westport, Conn.: Praeger, 2008. A good, general history of prisoners of war from ancient times to the modern era.
  • LaGrandeur, Philip. We Flew, We Fell, We Lived: The Remarkable Reminiscences of Second World War Evaders and Prisoners of War. London: Grub Street, 2007. Presents the stories of forty soldiers’ experiences in Nazi prisoner-of-war camps.
  • Lloyd, Clive L. A History of Napoleonic and American Prisoners of War, 1756-1816: Hulk, Depot, and Parole. Woodbridge, Suffolk, England: Antique Collectors’ Club, 2007. One of the only sources on the experiences of prisoners of war during the European and American conflicts of the late eighteenth and early nineteenth centuries.
  • MacDougall, Ian. All Men Are Brethren. Edinburgh: Tuckwell Press, 2009. Discusses various parts of the experiences of French prisoners of war held in Scotland during the Napoleonic Wars.
  • Spiller, Harry. American POWs in World War II: Twelve Personal Accounts of Captivity by Germany and Japan. Jefferson, N.C.: McFarland, 2009. Twelve prisoners of war during World War II describe their experiences, recounting harrowing tales of forced labor, disease, and brutality.

Collaboration in War

Genocide

Mercenaries

Peace Movements and Conscientious Objection to War

War Crimes and Military Justice

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