The Status of Deserters Under the 1949 Geneva Prisoner of War Convention

• Author: Captain James D. Clause
• Pages: 02

I. INTRODUCTIOX

Soldiers \Tho desert their own forces and ga over to the enemy as defectors appear destined to play an important role in future warn When the lines of battle are clearly drawn between two fundamental ideological beliefs the instances of desertion and demand for asylum may be expected to increase many fold. The probability of this assumption is vividly illustrated by the repatriation problem of the recent Korean conflict. Another element of modern warfare which supports this assumption is the increased emphasis placed on the use of pwchalogical warfare, with its appeals to enemy personnel to desert. The tactical and psychological advantage of individual, and particularly mass desertions by enemy peraonnel, will certainly not be overiooked by belligerents in future wars.

Khile it is recognized that desertion may be motivated by

Y ~ R S O ~ S

other than ideological beliefs, this study is concerned primarily with this type of deserter because of his growing importance and posaible utilization. His status in international law must be analyzed now in the relative calm of peace, or a forced solution will be found in the heat and haste of war which will satisfy few when peace is again restored.

The main purpose of this article is to review the pertinent provisions of the 1949 Geneva Prisoners af War Convention' and other sources of international law to determine the respective rights and duties of deserters and their captors. To make such a determination it is necessary to resolve the issue of whether a deserter must be accorded prisoner of war status under the 1949 Canrention. If deserters are included within the provisions of that Convention then there is little doubt as to their rights and

* Thm artlele waz adapted from a therin presented to The Jvdge Advacate General's School, C.S. Army, Charlotteawile. Virginia, while the author was a member of the Eighfh Advanced Clais. The opinions and eonelusions preaented herein are those of the author and do not necesasrily represent the view8 of The Judre Advacate General's School nor any other eovern- . .

>,>ental aeeney.

I"

JAGC, C.S Army; LL.B, Layols University of Pew Orleans, 15E2.1 Geneva Convention Relative to the Treatment of Prisoners of War, 12.hug 1949 [1556] 6 C.S.T. & O.I.A. 3316, T.I.A.S. No. 3364 (effective 2 Feb1D56). Hereinafter. dl references to the Convention or mention of specific articles refer to this Convention unlesãthsrnse indicated.*oo **,OB 15

duties. However, the 1949 Convention presents, rather than solves, the problem of initial status. This status, because of the express prohibitions in the articles. becomes crucial.

The absence of the ward "deserter" from the enumeration of persons who are given prisoner of war status under Article 4 of the Convention creates the first difficulty. In view of the differences in the practice of nations prior to the 1949 Convention it might be concluded that if the drafters had intended that deserters be cavered, the simple inclusion of the word in Article 4 would have easily diapased of the matter. However, it cannot be assumed that the silence as to this class of individuals was a mere orersight on the part of the drafters. The two view that immediately present themselves are (1) that the language af Article 4 is sufficiently broad to include deserters or (2) that the omission in the Convention evidences an intent on the part of the drafters that their status remain at the discretion of the captor as was the practice prior to 1949. This study will analyze both views in order to determine the correct legal interpretation of the Article.

One of the major consequences of the determination of whether or not deserters are covered by the Convention is the utilization which may be made of them during the period of hostilities. This question of utilization of deserters has not posed a major problem in past w'ars, not only because of their small number, but also because formerly they could be utilized wen if given prisoner of war status. However, such utilization may prove to be an im. partant issue in future ideological conflicts, particularly in the event of mass desertions. It is not unlikely that an entire enemy unit may desert and go over to the opposing force for the express purpose of fighting against their own forces and thus assist in the liberation of their nation from what they consider to be an adverse political ideolopy. Under such circumstances a belligerent can certainly be expected to give serious consideration to enlisting these deserters in his struggle against the enemy. This history of warfare is not devoid of instances where deserters have been utiiized to great advantage by a belligerent. If all deserters must be considered as prisoners of war under the Convention, the impact of Article 7 and Article 60 upon their utilization presents a serious problem.

The construction of the 1949 Convention in regard to forced repatriation of prisoners of war no longer is a major problem. In the light of the Korean Conflict, it is doubtful that many would now seriously contend that deserters should be forceably repatriated whether or not they are given prisoner of war status. 16 *co ZSiiB

STATUS OF DESERTERS

Therefore, this issue, so prominent in the writings of scholars six to eight years ago, will not be explored to any great extent in this article.

11. INTERNATIONAL LAW PRIOR TO THE 1949 GENEVA CONVENTION

Any attempt to properly e\w.luate the effect of the 1949 Convention and the intent of its drafters with respect to the status of deserters necessarily encompasses a review and understanding of the customary and conventional law prior to 1949,

1. CUSTOM

   The major difficulty of a study of custom is the lack of a suffi-cient number of precedents from which one can determine what nations considered to be their obligatory practice. This difficulty, along with the fact that few controversial problems have been generated in the past concerning the status of deserters, undoubtedly explains the slight attention devoted to this area of international law by the publicists. However, some few practicw have developed which are apparently accepted by most nations and sufficiently supported by the writings of authorities, to be considered as hiwing attained the effect of customary international law While it is not within the scope of this article to develop and discuss these principles in exhaustive detail, a brief recognition of their existence is considered essential to a proper understanding of the problems presented by the 1949 Convention. These practices may be grouped under three headings, (1) the right to receive deserters, (2) the right to utilize deserters, (3) the right to grant asylum to deserters after hostilities have ceased. This third category is a recognition of a fourth right possessed by the deserter's own state, that is the right to punish the deserter upon his reeapture. These four rights will now be discussed individually.

   1. Right to Receive Deserters

   The right of belligerents to receive deserters necessarily forms the basis of the customary rules with regard to deserters. This right was established as early as the time of the Greeks and Romans.z Grotius concisely stated the custom of his day, as fallows :a

   We receive deserters by the law of war; that is. It iQ not contrary to the law of war for uli to rewive him rho sbandou the Bide of the enmy and chooaea our om.

   2 See generally 2 Phillipson, The International Law and Custom of Ancient

   G r e w and Rome 68-68, 282 (1811).

   8 Grotius, De Jure Belli BC Pacis Libri Trea, bk. 8,eh. 1, 8 22 (Keisey trans].

   1325).*GO P91SB 17

   MILITARY LAW- REVIEW

   The reason for the establishment af this custom of warfare is not difficult to envision; far a belligerent by receiving deaerters gained not only a tactical advantage, but also the advantage of its demoralizing effect on the troops of his enemy. It is extremely doubtful that any belligerent has ever or mould ever forego these adrantages.

   A more recent authority, Fiare, further noted that: 4

   Each commander of belligerent aimiei shall have the ngh!, wltilout violating military hanar, to welcome enemy deserters.

   Other authorities,j as well as the United States Supreme Court,c have given recognition to this customary rule of law It should also be noted that this right has been extended to cover the right of belligerents to induce enemy soldiers to desert.'

   2. Utilization oi Deserters

   States recognized not only the right to receive deaertera but also the right to accept their services for any purpose when t,oliintarilu offered. This included allowing them to be enlisted in the army of the receiving state.B As most nations failed to distinguish betaeen deserters and prisoners of war with reBpect to their voluntary utilization, it is difficult to cite authority re-lating solely to deserters; but it is readily apparent that if this principle applied in the case of prisoners of war, it likewise applied EO deserters, whether or not they were accorded prisoner of war status.

   Many instances in the history of warfare could be cited where deserters or prisoners of war were used to advantage. The historsof American warfare since the Revolutionary War reveal3 instances of such utilization. While General George Washington objected to such a practice at first, he subsequently suggested that prisoners of war be offered inducements such as promotions in return for enlistments in the American Army., During the war betwen the states the enlistment of deserters and prisoners of war nas utilized by both sides.1° In the war with Mexico, various

   4 Fioxe's International Lav Cadined 163 (Boichard 1913).

   5 See, e.#., Du Payrst. Le Prisonnier De Guerre Dam La Guerre Continin- GL'nited States V. Reading, 59 U.S. (18 HOW.)

   tale 151 (1910); Rolin, Le Droit Moderne de la Gueire 384 (1020)

   1 (1356).

   7 L-S Dep't of Army F d d Manual 27-10. The Law of Land Warfa?i, par. 45 (1516) (heremafter cited BJ FII 27-10).

   8 See...