The so-called humane treatment of prisoners of war has always seemed like an oxymoron, at least to the ancient soldiers. Prisoners were not generally taken as any soldier left alive was just another mouth to feed and a risk of having that soldier escape and return to battle. Soldiers on the battlefield are not subject to human rights considerations.

But of all the horrors of the two world wars of the Twentieth Century, it was also a time of taking and keeping enemy soldiers alive and housed: prisoners of war.This article explores the heart-wrenching difficulties the law had of penetrating the hard psyche of the soldier in imposing a very basic, core set of human rights to this very violent and lethal area of human activity: war.

"The law of war forbids the wounding, killing, impressing into the troops of the country, or enslaving or otherwise maltreating the prisoners of war unless they have been guilty of some grave crime, and from the obligations of this law no civilized state can discharge itself."

Daniel Webster, 1842.

See Legal Definition of Prisoner of War.

There have been several "Geneva Conventions" attempting to limit the horrors of war.

The first was drafted in 1864 and dealt with the care of wounded prisoners of war (POWs), a result of international negotiations initiated by Henri Dunant, the founder of the Red Cross.

Japanese POWsThe second convention dealt with wounded or shipwrecked POWs and the third, the subject matter of this article, on prisoners of war.

There is a fourth convention dealing with civilians under enemy control as well as a number of protocols and several other international treaties such as one 1880 treaty which contained the following:

"War holds a great place in history, and it is not to be supposed that men will soon give it up - in spite of the protests which it arouses and the horror which it inspires - because it appears to be the only possible issue of disputes which threaten the existence of States, their liberty, their vital interests. But the gradual improvement in customs should be reflected in the method of conducting war. It is worthy of civilized nations to seek, as has been well said (Baron Jomini), ‘to restrain the destructive force of war, while recognizing its inexorable necessities.’

"The only legitimate end that States may have in war being to weaken the military strength of the enemy. The laws of war do not recognize in belligerents an unlimited liberty as to the means of injuring the enemy. They are to abstain especially from all needless severity, as well as from all perfidious, unjust, or tyrannical acts."

This article deals with the Convention Relative to the Treatment of Prisoners of War, which was published in Geneva on July 27, 1929, and further amended in 1949.

Commonly referred to as the "Geneva Convention", the 1929 treaty included the following fundamental POW rights:

  • Prisoners of war are in the custody of the hostile Government, not of the individuals which captured them.
  • (POWs) shall at all times be humanely treated and protected, particularly against acts of violence, from insults and from public curiosity. Measures of reprisal against them are forbidden.
  • Prisoners of war are entitled to respect for their persons and honour. Women shall be treated with all consideration due to their sex.
  • The detaining Power is required to provide for the maintenance of prisoners of war in its charge.
  • Differences of treatment between prisoners are permissible only if such differences are based on the military rank, the state of physical or mental health, the professional abilities, or the sex of those who benefit from them.
  • Every prisoner of war is required to declare, if he is interrogated on the subject, his true names and rank, or his regimental number. If he infringes this rule, he exposes himself to a restriction of the privileges accorded to prisoners of his category.
  • No pressure shall be exercised on prisoners to obtain information regarding the situation in their armed forces or their country. Prisoners who refuse to reply may not be threatened, insulted, or exposed to unpleasantness or disadvantages of any kind whatsoever.
  • Prisoners of war may be interned in a town, fortress or other place, and may be required not to go beyond certain fixed limits. They may also be interned in fenced camps; they shall not be confined or imprisoned except as a measure indispensable for safety or health, and only so long as circumstances exist which necessitate such a measure.
  • Belligerents may employ as workmen prisoners of war who are physically fit, other than officers and persons of equivalent statue, according to their rink and their ability....  It is forbidden to employ prisoners in the manufacture or transport of arms or munitions of any kind, or on the transport of material destined for combatant units.

The 1929 version was not perfect. Some armies participating in World War II either blatantly disregarded it, or leapt upon vulgar interpretations of it to justify war crimes.

Ironically, one of the issues the 1949 version of the Geneva Convention on POWs needed to address was the availability of the Convention to POWs who had committed war crimes as Nazi war criminals facing conviction for in Nuremberg, 1946, sought the protection of the Geneva Convention.

The 1949 version of the Geneva Convention ("Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949") and two addendums dated 1977, built on the experiences of World War II (WW2 Japanese POWs in picture) and contained most of the above and the following additional articles of international law:

  • Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
  • No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.
  • Any destruction of property must be justified by military necessity and civilians are not to be subjected to indiscriminate military attack.
  • Biological or chemical weapons are prohibited as is the use of children under 15 within the armed forces.

But as long as there are wars and lawyers, the treaties and protection of prisoners of war will require constant supervision. Loopholes abound.

Some of the current POW questions are:

  • Is it a violation of the Geneva Convention for a belligerent country to broadcast pictures of POWs, such as Iraq did with US POWs in 2003?
  • Is the current care of Afghanistan or Pakistani Taliban or Al Qaeda members at Guantánamo Bay, Cuba in keeping with the Geneva Convention? The US says that these prisoners were not lawful combatants and are not there as POWs.
  • What exemption if any should apply to international terrorist groups or their members?

References:

  • The International Committee of the Red Cross – "International Humanitarian Law - Treaties and Documents", available at icrc.org
  • The Laws of War on Land. Oxford, September 9, 1880.
  • BBC, "Q&A: Geneva rules and the war on terror", April 5, 2006