The Employment of Prisoners of War

Authorby Colonel Howard S. Jevie
Pages02
  1. INTRODUCTION

    From the days when the Romans first came to appreciate the economic value of prisoners of war as a source of labor, and beganto we them as slaves instead of killing them on the field of battle.1 until the drafting and adoption by a comparatively large number of members of the then family of sovereign states of the Second Hague Convention of 1899,s no attempt to regulate internationally the use made of prisoner-of-war labor by the Detaining Powers had been successful.^ The Regulations attached to that Convention dealt with the subject in a single article: as did those attached

    * Reprmted by permiasion from the April 1963 mme of the A\IERICAN JOURUAL OF IITERXAT~OXAL LAW.. The pinions expressed herem are those of the avthor and are not meensaniy thoae of The Judge Advocate General's School or any other governmental agency.

    JAGC, 0,s. Army (Ret.); Assmate Professor of Law, Samt LOUIE Universiry Schaal of Law; LL.B., 1930, Cornel1 Law School. LL.Y., 1857, George Washingtan Laa School: Member of the Bars of Kew Yark, Dlstriet of Columbia, 0,s. Conrr a i lditary Appeals, and the U.S. Supreme Court.

    1 Ds\ms, The Priaonsr of Wa7, 1 A.J.I.L. 521, 523 (1913).

    232 Stat. 1803. T.S. Xo, 403.

    S The Detaining Power is the state whxh haldr captured members af the enemy armed farces m B pnmner-of-war Status. The Power in whose armed forces they rere s e r ~ l n ~ at the fme of capture in known as the "Power upan which they depend."

    4 Part of Art. 76 oi Professor Francis Lieher's famous General Orders No. loo, April 21, 1363. ''Instructions for the Government of the Armies of thi United States m the Field," had dealt with this subjset unilaterally; and praviiiana with respect thereto had like .me heen Included in Art. 25 of the Deeisration drafted at the Brussela Conference of 1874 (2 U.S. FORE~CN

    RELATIOIS 1011 (1816); 1 A.J.1.L. SLPI. 96 (1907)). and ~n Arta. 71 and 72 at the "Oxford hlanuai" drafted by the lnatltute at International Law ~n 1380 (Annuaire de i'lnstitut de Droit International, 1831.1882). While these efforts unqueetmnably mRuenced in matard degree the deelaions subsequently reached at the iniernetlonal lovel, none of them canaiitvted

    6 Art 6 thereof reads:

    "The State may u t h e the labour of Prisoners of war accordmg to their rank and aptitude. Then tasks shall not be exceoaiw, and shall have nothing to do with military opemtions.

    "Prisoners may he authorized to work for the publie service, far p'ivate PBPBO~S. or on their o m aecovnt"Work done for the State shall be paid for according io the tarlffa in force for soldiera of the national army employed on similar tasks.

    *GO 6lUB 41

    aCtYai internstlonsl legidation.

    to the Fourth Hague Convention of 1907 which, with relatively minor changes, merely repeated the provisions of its illustrious predecessor. A somewhat more extensive elaboration of the subject was included in the 1929 Geneva Convention relative ta the Treatment of Prisoners of War' (hereinafter referred to as the 1929 Conventionl. And, although still far from perfect, the provisions concerning prisoner-of-war labor contained in the 1949 Geneva Convention relati\,e to the Treatment of Pnsoners of War8 (hereinafter referred to as the 1949 Convention) constitute an enlightened attempt to legislate a fairly comprehensive code governing the major problems involved in the employment of prisoners of war by the Detaining Power.@ The purpose of this study is to analyze the provisions of that code and to Surgest not only how the draftsmen intended them to be interpreted. but also how it can be expected that they will actually be implemented by Detaining Powern in any future war.'O

    While there are very obvious difference8 between the employment of workers available through a free labor market and the empiapent of prisoners of war. even a casual and cursory study will quickly disclose a remarkable number of similarities. The labor union which is engaged in negotiating a contract for its members is vitally interested in: (1) the conditions under which they will work, including safety provisions: (2) their workinp. hours and the holidays and vacations to which they will be entitled; (3) the compensation and other monetary benefits which they will receive; and (41 the grievance procedures which will

    PRISONERS OF WAR

    be available to them. (Of course, in each industry there will also be numerous items peculiar to that industry.) Because of the uniqueness of prisoner-of-war status, the 1949 Diplomatic Conference which drafted the latest prisoner-of-war convention felt it necessary, in negotiating far the benefit of future prisoners of war, to continue to cover certain items in addition to those listed above, such as the categories of prisoners of war who may be compelled to work (a problem which does not normally exist for labor unions in a free civilian society, although it may come into existence in a total war economy) ; and, collaterai to that, the specific industries in which they may or may not be employed. Inasmuch as these latter problems lie at the threshold of the utilization of prisoner-of-war labor, they will be considered before those enumerated above.

    Before proceeding to a detailed analysis of the labar provisions of the 1949 Convention, and how one may anticipate that they mill operate in time of war, it seems bath pertinent and appropriate to survey briefiy the history of, and the problems encountered in, the utilization of prisoner-of-war labar during the past century. That period is selected because its earliest date represents the point at which cartels far the exchange of prisoners of war had ceased to have any considerable importance and yet belligerents were apparently still unaware of the tremendous potentiality of the economic asset whiui was in their hands at a time of urgent need.

    11. HISTORY OF PRISONER EMPLOYMENT

    1. THE EARLY YEARS

      The American Civil War (1861-1865) vas the first major conflict involving large masses of troops and large numbers of prisoners of war in which exchanges were the exception rather than the rule." As a result, both aides found themselves encumbered with great masses of prisoners of war; but neither side made any substantial use of this potential pool of manpower, although both suffered from labor shortages.'2 This was so, despite the state- I1 A general eartei governing the exchange of prmoners of war was entered into in 1862 (the Dix-Hill Cartel, July 22, 1562, War of the Rebellmn, Series11, Val. IV, I. 226 (18991 1, but It war not observed to any great degree byeither side. LEWIS

      OF PRISONER OF WAR UTILI%ATLON

      STATES ARIT, 17761945, PP. 29-30 (19651, [heremafter citod as LEWI~,

      HISTORY].

      LEWIS, HISTORI 27, 41. For a vivid fietianal, but factuslly accurate, Picture of this raite of manpower ~n the South, with its resulting evils to the prisonera of war themselves, see KABTOR. AXDERBOXVILLE (1866).

      *GO 186,* I S

      BY TEE UK~TED

      ABD MEWHA, H~~TORY

      ment in Lieber's Code18 that prisoners of war "may be required to work for the benefit of the captor's government, according to their rank and condition," and despite the valiant efforts of the Quartermaster General of the Union Army, who sought unsuc-cessfully, although folly supported by Professor Lieber, to over-come the official reluctance to use prisoner-of-war labor. The policy of the Federal Gowrnment was th: t primners of war would be compelled ta work "only as an instrument of reprisal against some act of the enemy."

      In 1874 an international conference, which included eminent representatives from most of the leading European nations, met in Brussels at the invitation of the Tsar of Russia "in order to deliberate on the draft of an international agreement respecting the laws and cutoms of rvar." 1% This conference prepared a text which, while never ratified, constituted a major step forward in the effort to set down in definitive manner those rules of land warfare which could be considered to be a part of the law of nations. It included, in its Article 25, a provision concerning prisoner-of-war labor which adopted, but considerably amplified, Lieber's single sentence an the subject quoted above. This article was subsequently adopted almost verbatim by the Institute of International Law when it drafted Articles 11 and 72 of its "Ox-ford Manual" in 1880;16 and it furnished much of the material far Article 6 of the Regulations attached to the Second Hague Convention of 1899 and the same article of the Regulations attached to the Fourth Hague Convention of 1901.

      Despite all of these efforts, the actual utilization of prisoner-ofwar labor remained negligible during the numerous major conflicts which preceded World War I. This last was the firsr modern war in which there was total economic mobilization by the belligerents; and there were more men held as prisoners of war and for longer periods of time than during any previous conflict. Nevertheless, it was not until 1916 that the British War Office could overcome opposition in the United Kingdom to the use of prisoner-of-war labor,ll and after the entry of the United States into the war, prisoners of war held in this country were not use-fully employed until the investigation of an attempted mas8 escape

      11 see note 4 Bupra.1'tEWIS, HISTURI 37, 3e-39.*b Preamble, Deelaratron of BIYSI~S, on. cit. supra note 4.16 op. eil. mp7a note 4.ilBelReld, Thb T7ratmmt at Pnavnsrs of W@r 9 TRAXSACT. GRm. SOC'Y 181 (1924).44 *co 111148

      PRISONERS OF WAR

      resulted in a recommendation for a program of compulsory prisoner-of-war labor, primarily a8 a means of reducing disciplinary problems.'P When the belligerents eventually did find it essential to make use of the tremendous prisoner-of-war man-power pwls which were available to them, the provisions of the Regulations attached to the Fourth Hague Convention of 1907 proved inadequate to solve the numerou8 problems which arose, thereby necessitating the negotiation of a series of bilateral and multilateral...

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