International Law. A Treatise Volume Ii Part 18

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.]

-- 129. Articles 10 to 12 of the Hague Regulations deal with release on parole in the following manner:--No belligerent is obliged to a.s.sent to a prisoner's request to be released on parole, and no prisoner may be forced to accept such release. But if the laws of his country authorise him to do so, and if he acquiesces, any prisoner may be released on parole. In such case he is in honour bound scrupulously to fulfil the engagement he has contracted, both as regards his own Government and the Government that released him. And his own Government is formally bound neither to request, nor to accept, from him any service incompatible with the parole given. Any prisoner released on parole and recaptured bearing arms against the belligerent who released him, or against such belligerent's allies, forfeits the privilege to be treated as a prisoner of war, and may be tried by court-martial. The Hague Regulations do not lay down the punishment for such breach of parole, but according to a customary rule of International Law the punishment may be capital.

[Sidenote: Bureau of Information.]

-- 130. According to articles 14 and 16 of the Hague Regulations every belligerent[263] must inst.i.tute on the commencement of war a Bureau of Information relative to his prisoners of war. This Bureau is intended to answer all inquiries about prisoners. It must be furnished by all the services concerned with all the necessary information to enable it to make out and keep up to date a separate return for each prisoner, and it must, therefore, be kept informed of internments and changes as well as of admissions into hospital, of deaths, releases on parole, exchanges, and escapes. It must state in its return for each prisoner the regimental number, surname and name, age, place of origin, rank, unit, wounds, date and place of capture, of internment, of the wounds received, date of death, and any observations of a special character.

This separate return must, after conclusion of peace, be sent to the Government of the other belligerent.

[Footnote 263: And likewise such neutral States as receive and detain members of the armed forces of the belligerents; see article 14.]

The Bureau must likewise receive and collect all objects of personal use, valuables, letters, and the like, found on battlefields[264] or left by prisoners who have been released on parole, or exchanged, or who have escaped, or died in hospital or ambulances, and must transmit these articles to those interested. The Bureau must enjoy the privilege of free postage.

[Footnote 264: See above, -- 124.]

[Sidenote: Relief Societies.]

-- 131. A new and valuable rule, taken from the Brussels Declaration, is that of article 15 of the Hague Regulations making it a duty of every belligerent to grant facilities to Relief Societies to serve as intermediaries for charity to prisoners of war. The condition of the admission of such societies and their agents is that the former are regularly const.i.tuted in accordance with the law of their country.

Delegates of such societies may be admitted to the places of internment for the distribution of relief, as also to the halting-places of repatriated prisoners, through a personal permit of the military authorities, provided they give an engagement in writing that they will comply with all regulations by the authorities for order and police.

[Sidenote: End of Captivity.]

-- 132. Captivity can come to an end through different modes. Apart from release on parole, which has already been mentioned, captivity comes to an end--(1) through simple release without parole; (2) through successful flight; (3) through liberation by the invading enemy to whose army the respective prisoners belong; (4) through exchange for prisoners taken by the enemy; (5) through prisoners[265] being brought into neutral territory by captors who take refuge there; and, lastly (6), through the war coming to an end. Release of prisoners for ransom is no longer practised, except in the case of the crew of a captured merchantman released on a ransom bill.[266] It ought, however, to be observed that the practice of ransoming prisoners might be revived if convenient, provided the ransom is to be paid not to the individual captor but to the belligerent whose forces made the capture.

[Footnote 265: See below, -- 337.]

[Footnote 266: See below, -- 195.]

As regards the end of captivity through the war coming to an end, a distinction must be made according to the different modes of ending war.

If the war ends by peace being concluded, captivity comes to an end at once[267] with the conclusion of peace, and, as article 20 of the Hague Regulations expressly enacts, the repatriation of prisoners must be effected as speedily as possible. If, however, the war ends through conquest and annexation of the vanquished State, captivity comes to an end as soon as peace is established. It ought to end with annexation, and it will in most cases do so. But as guerilla war may well go on after conquest and annexation, and thus prevent a condition of peace from being established, although real warfare is over, it is necessary not to confound annexation with peace.[268] The point is of interest regarding such prisoners only as are subjects of neutral States. For other prisoners become through annexation subjects of the State that keeps them in captivity, and such State is, therefore, as far as International Law is concerned, unrestricted in taking any measure it likes with regard to them. It can repatriate them, and it will in most cases do so. But if it thinks that they might endanger its hold over the conquered territory, it might likewise prevent their repatriation for any definite or indefinite period.[269]

[Footnote 267: That, nevertheless, the prisoners remain under the discipline of the captor until they have been handed over to the authorities of their home State, will be shown below, -- 275.]

[Footnote 268: See above, -- 60.]

[Footnote 269: Thus, after the South African War, Great Britain refused to repatriate those prisoners of war who were not prepared to take the oath of allegiance.]

V

APPROPRIATION AND UTILISATION OF PUBLIC ENEMY PROPERTY

Grotius, III. c. 5--Vattel, III. ---- 73, 160-164--Hall, ---- 136-138--Westlake, II. pp. 102-107--Lawrence, -- 171--Maine, pp.

192-206--Manning, pp. 179-183--Twiss, II. ---- 62-71--Halleck, II.

pp. 58-68--Moore, VII. -- 1148--Taylor, ---- 529-536--Wharton, III. -- 340--Wheaton, ---- 346, 352-354--Bluntschli, ---- 644-651A--Heffter, ---- 130-136--Lueder in Holtzendorff, IV. pp. 488-500--G. F.

Martens, II. ---- 279-280--Ullmann, -- 183--Bonfils, Nos.

1176-1193--Despagnet, Nos. 592-596--Pradier-Fodere, VII. Nos.

2989-3018--Rivier, II. pp. 306-314--Nys, III. pp. 296-308--Calvo, IV. ---- 2199-2214--Fiore, III. Nos. 1389, 1392, 1393, 1470, and Code, Nos. 1557-1560--Martens, II. -- 120--Longuet, -- 96--Merignhac, pp. 299-316--Pillet, pp. 319-340--_Kriegsbrauch_, pp. 57-60--Holland, _War_, No. 113--_Land Warfare_, ---- 426-432--Meurer, II. ---- 65-69--Spaight, pp. 410-418--Zorn, pp.

243-270--Rouard de Card, _La guerre continentale et la propriete_ (1877)--Bluntschli, _Das Beuterecht im Krieg, und das Seebeuterecht insbesondere_ (1878)--Depambour, _Des effets de l'occupation en temps de guerre sur la propriete et la jouissance des biens publics et particuliers_ (1900)--Wehberg, _Das Beuterecht im Land und Seekrieg_ (1909; an English translation appeared in 1911 under the t.i.tle _Capture in War on Land and Sea_)--Latifi, _Effects of War on Property_ (1909).

[Sidenote: Appropriation of all the Enemy Property no longer admissible.]

-- 133. Under a former rule of International Law belligerents could appropriate all public and private[270] enemy property they found on enemy territory. This rule is now obsolete. Its place is taken by several rules, since distinctions are to be made between moveable and immoveable property, public and private property, and, further, between different kinds of private and public property. These rules must be discussed _seriatim_.