Prisoner of War Parole: Ancient Concept, Modern Utility

• Author: Major Gary D. Brown
• Pages: 04

200 MILITARY LAW REVIEW [Vol. 156

PRISONER OF WAR PAROLE: ANCIENT CONCEPT, MODERN UTILITY

MAJOR GARY D. BROWN1

1. Introduction

   Parole has a long and storied history in international law. The word conjures up a variety of thoughts but generally early release from civilian prison. Here, parole is used in the international law sense of releasing a prisoner of war (PW) in return for a pledge not to bear arms.2 This article presents a historical analysis of parole and challenges the United States prohibition of service members accepting parole.

   Parole is "[t]he agreement of persons who have been taken prisoner by an enemy that they will not again take up arms against those who captured them, either for a limited time or during the continuance of the war."3 The U.S. Department of Defense (DOD) defines parole more broadly, however: "Parole agreements are promises given the captor by a POW to fulfill stated conditions, such as not to bear arms or not to escape, in consideration of special privileges, such as release from captivity or lessened restraint."4

   The acceptance of parole is said to be a personal matter.5 However, parole is not solely a personal pledge but also a reflection on national trustworthiness.6 Paroles are "sacred obligations, and the national faith is

   pledged for their fulfillment."7 Even the U.S. Supreme Court concluded that a country's faith is pledged to fulfill the promise of a paroled PW, and that the national character is dishonored by a parole violator.8

2. History

   Although it is unclear exactly when parole originated, it developed along the general historical pattern of improving the fortunes of those unlucky enough to become PWs. In the earliest times, there were no prisoners of war; captured enemies were simply killed.9 Later, capturing nations began to use PWs as a source of slave labor.10

   During feudal wars in medieval days, at least partly as a result of the spread of Christianity, there began a system that saw some prisoners ransomed.11 The ransom provided a lucrative source of revenue for the detaining authority.12 Ransom amounts ranged from the reasonable to the very expensive. The difficulty of structuring accurate currency conversions complicates meaningful analysis, but the average ransom equaled the annual pay of the ransomed PW.13 In what must therefore have been considered a great bargain, 1700 Samnites captured at Perugia around 300 B.C. were released in return for 310 asses.14 Ransoming became much

   less common after the end of the Thirty Years' War, but continued until the eighteenth century.15

   Prisoner exchanges were another improvement in the treatment of PWs. They allowed all PWs to go free, as long as the flow of PWs to each belligerent was reasonably balanced. Parole, in one sense, was merely an improved form of exchange which allowed detaining powers to send prisoners home in anticipation of a later exchange that would free them for combat duties again.16

   The Carthaginians were noted for their use of parole.17 For example, Hamilcar, the great Carthaginian general, released his Numidian captives on the condition that none would again bear arms against Carthage.18 By

   the time the Carthaginians paroled Roman General Marcus Atilius Regulus in 250 B.C., parole was already well established in international warfare.19

   Regulus was taken captive during a Roman foray into Africa. Legend has it that the Carthaginians paroled him so that he could return with a Carthaginian embassy to Rome to negotiate a compromise peace. He accepted the parole, promising to return to Carthage if the embassy failed, but when Regulus arrived in Rome he argued in the Senate against any end to the war. Regulus insisted that prisoners like himself who surrendered

   rather than dying in battle were not worth saving. Ignoring the advice of his family and friends, Regulus then returned to Carthage as he had promised where he was tortured to death by the angry Carthaginians.20

   Medieval knights were also bound by rules of parole. "A knight who escapes although he had given his word to remain in captivity offends God and man."21 This was true as long as his captors treated him humanely; escape from a captor who killed or caused the death of prisoners by poor treatment was permissible.22 Through the ensuing years, belligerents continued to employ parole but it was sometimes supplanted by the more lucrative option of ransom; however, parole was always available if the belligerents agreed.

   During the American Revolution, officers on both sides generally expected and received paroles.23 One British commander even paroled American enlisted troops.24 The terms and application of the paroles were not always the same, however. American officers who were paroled by the British were committed to three essential pledges. They agreed to abstain from military activity, to refrain from correspondence with the enemy or criticism of the British and to present themselves if summoned. The last pledge was always included, but the British considered the other two binding customary law.25 It was also not unknown for the British to parole officers, but then retain them in close confinement.26 This is less generous than the traditional parole, but certainly preferable to actual imprisonment.

   Congress took a more fixed approach to the parole issue. In February of 1776, it set out a specific formula for the granting of parole to enemy officers.27 The American parole required that British officers go to and stay within six miles of a place of their choosing, that they refrain from

   passing intelligence to the British and that they not criticize the actions of Congress. Although in at least one case Congress ordered that a guard be assigned to an officer they deemed less than trustworthy, it is fair to say that the Americans were generally more liberal in the area of parole than the British.28

   American liberality was stretched beyond the limit when Congress discovered that British General John Burgoyne, who was free in England on parole, was participating in sessions of the House of Lords. Congress considered this an affront, and ordered that all British and German officers who were absent from America on parole were to return. The harsh effect of this edict was reduced when many of the parolees, including Lieutenant General Burgoyne, were exchanged.29

   Although many parole pledges were broken, the parole system continued to operate throughout the war.30 Taking into particular consideration the horrible conditions aboard the British prison ships, the system must be termed a success in that it avoided much unnecessary suffering by PWs.31

   During the Napoleonic Wars, Napoleon's situational ethics placed great strain on the parole regime that was in effect.32 French abuses of the system were particularly egregious.33 Nonetheless, France and Britain retained a parole system throughout the conflicts. In stark contrast to the

   French attitude, British officers viewed the parole pledge as a serious matter, and even considered accepting parole a military duty as it enabled them to return to work and resume earning their pay.34

   Both sides recognized and used parole in the War of 1812.35 Neither side in the conflict had an interest in holding large numbers of prisoners, but limiting the number was generally accomplished through prisoner exchanges.36 Many privateers at sea simply released prisoners, even without a parole agreement, as the prisoners took up valuable space on their ships and consumed the limited stocks of food and water.37

   Parole was generally employed for officers, but some difficulties were encountered. The British wanted to limit the parole of naval officers to those captured from larger ships; this was to avoid granting parole to bothersome privateers.38 Generally, however, parole for officers was the rule.39

   Later in the nineteenth century, the Dix-Hill Cartel, negotiated between the two sides in the United States Civil War, employed paroles in the larger context of a prisoner exchange system. The Confederacy was

   particularly interested in avoiding the burden of feeding PWs, and pressed for a formal exchange agreement.40 Unwilling to recognize the Confederacy but wanting to improve conditions for Union soldiers held captive, the Lincoln Administration finally negotiated an exchange system with the Confederate Army. The Dix-Hill Cartel was formally established in July 1862.41

   Dix-Hill called for each side to exchange or parole all prisoners of war "in ten days from the time of their capture, if it be practicable to transfer them to their own lines in that time; if not, as soon thereafter as practicable."42 Paroled PWs could not serve in the armed forces again until they were formally exchanged; in other words until a PW belonging to the detaining power was also released, and both PWs could again actively engage in the hostilities.43 Paroled prisoners were held in camps located in friendly territory until they were exchanged.44 Of course, the relative station of the prisoners was taken into account. Dix-Hill specified that a noncommissioned officer would be exchanged for two privates, a lieutenant for four and the exchange values worked their way up to a commanding general, who was worth sixty privates in exchange.45

   The cartel lasted for ten months, but eventually failed. There were several reasons for this, centering around politics and failures to adhere to the terms of the cartel. Neither side was particularly faithful in exchanging the prisoners "as soon as practicable." The speed of the exchange tended to vary with the flow of the war; the side getting the best of the war at the time was reluctant to give up large numbers of prisoners. Further, both bel-

   ligerents were at times angry over the treatment of their PWs.46 The last straw from the North's perspective was when some of the 37,000 Confederate soldiers who were granted paroles by Union generals after the battles at Vicksburg and Port Hudson were...