26 Detention, Torture and Rights of Prisoners of War: Part I

Rohini Sen

1. Learning Outcomes

2. Introduction

3. Tracing the History of Treatment of POWs

3.1 Pre-World Wars

3.2 The World Wars

4. Laws for Protection of POWs

4.1 Geneva Conventions and Additional Protocols

4.2 Other Laws

5. Conclusion

Learning Outcomes

• To give students an overview of the necessity for protection of the Prisoner-of-Wars;
• By the end of the chapter, students will have an understanding of international human rights law on Prisoner-of-Wars.

Introduction

The use of phrase ‘prisoner of war’ can be traced to 1660. This phrase is used for an individual, who may or may not be a combatant in an armed conflict, is captured by the enemy. Prisoners of war are held to isolate them from enemy combatants still in the field, to release and repatriate them in an orderly manner after hostilities. It demonstrated military victory. POWs were punished, prosecuted for war crimes and exploited for their labour. They became means to collect military and political intelligence and were indoctrinated in new political or religious beliefs.

This chapter traces the treatment of prison-of-war throughout history and the need and evolution of the protection of their human rights.

3. Tracing the History of Treatment of POWs

3.1 Pre-World Wars

In the early history of warfare, there was no recognition of a status of prisoner of war. Those captured, irrespective of whether they were a combatant or not, were either killed or enslaved by their captor. The women, children, and elders of the defeated tribe or nation were frequently disposed of in a similar fashion. The availability of food and usefulness of a prisoner were the driving factor for the captor to keep a captive alive. However, such prisoners were considered as a movable property or a chattel owned by his captor. During religious wars, it was generally considered a virtue of putting nonbelievers to death. For example, in the 13th century Albigensian Crusade and the Northern Crusades when asked by a Crusader how to distinguish between the Catholics and Cathars once they’d taken the city of Béziers, the Papal Legate Arnaud Amalric famously replied, “Kill them all, God will know His own”. Although, in the time of the campaigns of Julius Caesar a captive could, under certain circumstances, become a freedman within the Roman Empire.

The treatment of prisoners changed as warfare changed with time. During the Middle Ages, there was a decline in enslaving the enemies’ soldiers. However, ransoming of the prisoners was still a popularly practised even as late as the 17th century. The captives were sometimes a burden on their captor. Thus, the civilians of the defeated party were infrequently taken as prisoner. For instance, during Childeric’s siege and blockade of Paris in 464, the nun Geneviève (later canonised as the city’s Patron Saint) pleaded with the Frankish King for the welfare of prisoners of war and met with a favourable response and Clovis I, later, liberated captives after Genevieve urged him to do so.

By the 16th and early 17th centuries, some European political and legal philosophers expressed their thoughts about the amelioration of the effects of capture upon prisoners. Hugo Grotius advocated, in his De jure Belli ac Pacis (1625; On the Law of War and Peace), for exchange and ransom of prisoners even though he believed that the victors had the right to enslave their enemies. A notion of minimal destruction of property and life during the war was formed. The 1648 Peace of Westphalia, which ended the Thirty Years’ War, established the rule that prisoners of war should be released without ransom at the end of hostilities and that they should be allowed to return to their homelands.

In the 18th century, the national, as well as international laws, started to envelop a sense of morality which had a huge impact on the problems of prisoners of war. The prisoners were exchanged during the American Revolutionary War and Napoleonic Wars (1793–1815), followed by the Anglo-American War of 1812 to reduce the number of prisons and also to alleviate the shortage ofskilled personnel in the home country. Prisoner-of-war camps were built to house the prisoners. The earliest known purposely built prisoner-of-war camp was established at Norman Cross, England in 1797 to house the increasing number of prisoners from the French Revolutionary Wars and the Napoleonic Wars. It was intended to be a model depot providing the most humane treatment of prisoners of war. The French political philosopher Montesquieu in his L’Esprit des Lois (1748; The Spirit of Laws) wrote that the only right in a war that the captor had over a prisoner was to prevent him from harming. He argued that a prisoner should not be treated as property by the captor but should only be removed from the battle. Other writers, such as Jean-Jacques Rousseau and Emerich de Vattel, expanded on the same theme and developed what might be called the quarantine theory for the disposition of prisoners.

The Western world started to recognise the principles of treatment of prisoner of wars by the mid-nineteenth century. Initially, at the start of the American Civil War (1861–65), captives were kept in the camps but were still paid though not allowed to perform military duties and agreed not to fight until they were officially exchanged. However, this system collapsed because in 1864 the Confederacy Gen. Ulysses S. Grant refused to recognise former slaves serving as African American soldiers in the Union army and by the end of the war about 56,000 of the 409,000 POWs died in prisons, accounting for nearly 10% of the conflict’s fatalities. The failure to maintain the principles during the American Civil War and the Franco-German War (1870–71) led to numerous attempts in the latter half of the century to improve the processing and treatment of the prisoner. This led to the emergence of a series of international conventions. In 1874 a conference in Brussels agreed to prevent inhumane treatment of the prisoners and excessive/unnecessary use of force to harm them but it was not ratified. In 1899 and again in 1907 international conferences at the Hague drew up rules of conduct that gained some recognition in international law. Chapter II of the Annex to the 1907 Hague Convention IV – The Laws and Customs of War on Land covered the treatment of prisoners of war in detail. These provisions were further expanded in the 1929 Geneva Convention on the Prisoners of War and were largely revised in the Third Geneva Convention in 1949.

3.2 The World Wars

The events of the two World Wars had a profound effect on international law due to the widespread denial of civil rights and liberties on the basis of racial, religious, and political discrimination. The systematic use of violence, including wanton murder and ultimately genocide, the use of slave labour, abuse and murder of prisoners of war, widespread deportations, and confiscation of property forced changes to the status quo. By the end of World War I, around eight million had surrendered and were held in prisoner-of-war camps. Around 2.5 million POWs were held by Germany, Russia held 2.9 million, Britain and France held about 720,000 and the US held 48,000.

Germans, from the start of the war, had taken in a large volume of prisoners. In September 1914, 125,050 French soldiers and 94,000 Russian ones were held captive. They had made no preparations for holding large numbers of captives; most of their prisoner-of-war camps were hastily established and were in the main inadequate in every way. The goal to maximize the number of installations in haste gave rise to problems of hygiene and illness. By the summer of 1915 working camps had been established and men were sent to labour in mines, forests, factories and farms. The basic construction of the camp created the problems of toilets and un-breathable atmosphere. Thus, diseases like typhus or cholera-affected the camps quickly. In February 1915, the camp at Chemnitz was placed under quarantine; one prisoner wrote that the only vehicles approaching the camp were those transporting coffins. A confinement that was visual as well as physical very quickly led to psychological illnesses among the prisoners, illnesses generally grouped under the heading of “barbed-wire psychosis” or “prisoner’s syndrome”. Cases of epilepsy, madness and suicides undergone in the camps were because of the physical and/or moral persecutions. Falling afoul of camp rules exposed a prisoner to sanctions, which could come about for various reasons: refusal to salute, refusal to answer during roll call, insubordination, possession of banned objects like paper, wearing civilian clothes, escape or attempted escape. Various forms of detention were executed: locking up the prisoner for weeks or attaching to post with hands behind his back and had to remain in this position, which prevented him from moving, for a certain amount of time, without eating or drinking. Amidst the dim living conditions, the prisoners were allowed to receive as well as send letters or parcels. Even libraries and places for religious practices opened in most camps by the end of October 1915. The prisoners captured by the Ottoman Empire were weak and starved when they surrendered, and 4,250 died in captivity. The prisoners-of-war in Turkish camps, except for officers, were treated particularly harshly. The Australian prisoners captured during Sinai and Palestine campaign in 1915 were forced to march and crowded railway journeys preceded years in camps where disease, poor diet and inadequate medical facilities prevailed. The prisoners that survived the camps were exchanged at the end of the war. While the Allied prisoners were sent home at the end of the war, the same treatment were not granted to Central Powers prisoners of the Allies and Russia, many of which had to serve as forced labour, e.g. in France, until 1920. They were released after many approaches by the ICRC to the Allied Supreme Council.

Soon after the war, the nations of the world gathered in Geneva to devise the Convention of 1929, which before the outbreak of World War II was ratified by France, Germany, Great Britain, the United States, and many other nations, but not by Japan or the Soviet Union. The most important innovations consisted in the prohibition of reprisals and collective penalties, the organization of prisoners’ work, the designation, by the prisoners, of representatives and the control exercised by protecting Powers.

During World War II millions of persons were taken prisoner under widely varying circumstances and experienced treatment that ranged from excellent to barbaric. The treatment of prisoners was supposed to be governed by the Geneva Convention 1929 signed by major Western powers such as Britain, US, Italy and Germany. Japan had signed but not ratified it and thus did not treat its prisoners according to the international agreement. The Japanese treated their British, American, and Australian POWs harshly, and only about 60 percent of these POWs survived the war. The armies of the Western Allies were under strict orders to treat Axis prisoners in line with the convention, something which generally occurred. Germany treated it’s British, French, and American prisoners comparatively well but treated Soviet, Polish, and other Slavic prisoners-of-war with genocidal severity. Of about 5,700,000 Red Army soldiers captured by the Germans, only about 2,000,000 survived the war; more than 2,000,000 of the 3,800,000 Soviet troops captured during the German invasion in 1941 were simply allowed to starve to death.

The prisoners-of-war in Japanese camps were generally accommodated in barracks and were given mats to sleep on. The camps were encircled with barbed wire or high wooden fencing and those who attempted escape would be executed in front of other prisoners. The majority survived on barley, green stew, meat or fish once a month and seaweed stew. Moreover, the prisoners did not receive the parcels from Red Cross. In German camps, the prisoners were stripped off their clothing and supplies. The German camps for Soviet POWs were mostly open ground fenced with barbed wires and watch-towers. There would be no housing.Beatings and other abuse by the guards were common, and prisoners were malnourished, often consuming only a few hundred calories per day. Medical treatment was non-existent, and an International Red Cross offer to help in 1941 was rejected by Hitler. An instance of a camp mistreatment is Stalag 324 where once a week the sick inmates were to be shot.In the “weeding-out programs” (Aussonderungsaktionen) in 1941–42, the Gestapo further identified Communist Party and state officials, commissars, academic scholars, Jews and other “undesirable” or “dangerous” individuals who survived the Commissar Orders elections, and transferred them to concentration camps, where they were immediately summarily executed.

By the end of the war, according to the historian Niall Ferguson, in addition to figures from Keith Lowe, the highest POWs died were Russian held by Germans (57.5%0 and the lowest were German POWs held by British (0.03%).

Laws for Protection of POWs

A numerous international instruments were laid down to deal with treatment of prisoners, such as, Geneva Conventions, the International Covenant on Civil and Political Rights, the UN Standard Minimum Rules for the Treatment of Prisoners, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of Persons with Disabilities.

4.1 Geneva Conventions and Additional Protocols

The rules protecting the POWs were first codified in the Geneva Convention of 1929. Following the World War II, they were refined in the Third Geneva Convention in 1949 and Additional Protocol of 1977. Under the 1949 Geneva Conventions, prisoners of war must at all times be humanely treated. Under Part II, Article 12 of the Geneva Convention, prisoners of war are considered to be the captives of the enemy power, not the individuals or military units who take them into custody. Moreover, “they must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.”The government of the opposite power is held responsible for the treatment of the POWs. Under Part 2, Article 13 prisoners of war must always be humanely treated. Further, the captor has to treat their prisoners with respect and honour under all circumstances. It forbids any form of coercion to be inflicted upon the prisoner in pursuit of obtaining information “of any kind whatsoever”. No prisoner can be subjected to the torture of any form. They cannot be physically mutilated nor be medically or scientifically experimented upon which is on in their best interest. No act or omission which can cause death or even endanger their life is lawful. More recently, article 45 of Additional Protocol I to the Geneva Conventions, applicable to international armed conflicts, grants the protections of “prisoner of war” status to persons taking part in hostilities who fall into the power of an adverse party. According to Additional Protocol II, similar protections are due to persons detained during non-international armed conflicts. Moreover, all wounded persons, “whether or not they have taken part in the armed conflict, shall be respected and protected” and no one should take advantage of their weakness in order to mistreat them or harm them in any way. In non-international armed conflicts, Article 3 common to the 1949 Geneva Conventions and Additional Protocol II provide that persons deprived of liberty for reasons related to the conflict must also be treated humanely in all circumstances.

4.2 Other Laws

The Section of Individual Rights and Responsibilities, 1966, provides leadership within the ABA and the legal profession in protecting and advancing human rights, civil liberties, and social justice. It addresses the issues under civil rights and ensures the protection of the individual’s rights in the diverse and changing society. The UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (SPT), 2007, is one of the another mechanism of the United Nations directed to the prevention of torture and other forms of ill-treatment. In 2002, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in detention places came into force. Which There are a number of other conventions and international treaties with provisions pertaining to the ethical treatment of prisoners of war, war refugees, and others taken custody during wartime. A prominent example is the Agreement on the Gaza Strip and Jericho Agreement, pertaining to prisoners of war around areas that have been in conflict with Israel. Few organisations such as ICRC (War and International Humanitarian Law) and Stop POW Torture are dedicated to create awareness and protect POWs’ laws.

5. Conclusion

In spite of gaining international recognition and codification, the prisoners captured have been mistreated violating their rights. For instance, during the Korean War, the United States reported that North Korea mistreated prisoners of war: soldiers were beaten, starved, put to forced labour, marched to death, and summarily executed. In 1991, during the Persian Gulf War, American, British, Italian, and Kuwaiti POWs (mostly crew members of downed aircraft and Special Forces) were tortured by the Iraqi secret police.

Reference 

• “John Hickman, “What is a Prisoner of War For?” ”Scientia Militaria”. Vol. 36,No. 2. 2008. Retrieved 14 April 2012.http://www.ajol.info/index.php/smsajms/article/viewFile/42654/9522
• “Prisoner of war”, Encyclopædia Britannica http://www.britannica.com/EBchecked/topic/477235/prisoner-of-war-POW
• http://www.hg.org/prisoners-of-war.html