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International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply

Published online by Cambridge University Press:  28 March 2017

Howard S. Levie
Howard S. Levie*
Affiliation:
Saint Louis University Law School
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Extract

In the July 1973 issue of the Journal, there appeared an article with the above title written by Professor Richard Falk, in which he, in effect, advanced the thesis that the release of prisoners of war for repatriation during the course of hostilities in Vietnam to an ad hoc and self-styled “humanitarian organization” (which admittedly consisted solely of individuals who were vocal opponents of the United States participation in those hostilities) either constituted a valid and forward-looking interpretation of the provisions of the Geneva Convention of 1949 relative to the Treatment of Prisoners of War (hereinafter referred to as “the 1949 Convention”) or indicated the need for revision of that instrument. The subject appears to be one which calls for an analysis in considerably greater depth than the treatment provided in the article by Professor Falk.

Type
Research Article
Information
American Journal of International Law , Volume 67 , Issue 4 , October 1973 , pp. 693 - 710
Copyright
Copyright © American Society of International Law 1973

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References

1 66 AJIL 465 (1973) (hereinafter cited as Falk).

2 6 UST 3316; 75 UNTS 135; 47 AJIL STOP. 119 (1953).

3 One author asserts that “[f]aint though unmistakeable traces of it [ransom] survive even into Napoleon’s war, . . .” Lewis, , Napoleon and His British Captives 43 (1962)Google Scholar. See also, Levie, , The Nature and Scope of the Armistice Agreement , 50 AJIL 880, 897 (1956)Google Scholar. Perhaps it may be said to have reappeared momentarily as a result of the sequel to the Bay of Pigs episode.

4 When, for some reason, a formal exchange could not be made, a prisoner of war might be released and repatriated in a temporary parole status until his counterpart had been repatriated and the formal exchange had thus been completed. Lewis, supra note 3, at 45.

5 The occasional procedure mentioned in the previous note was substantially the system adopted as a general procedure in the rather ineffectual Dix-Hill Cartel during the American Civil War. Lewis, & Mewha, , The History of Prisoner of War Utilization by the United States Army, 1776–1945, at 29–30 (1955)Google Scholar; Murphy, , Prisoners of War: Repatriation or Internment in Wartime 2–3 (1971)Google Scholar.

6 The release and repatriation on temporary parole mentioned in note 4, supra, was the exception rather than the rule; and the Dix-Hill Cartel, in attempting to make it the rule, failed to accomplish the intended result to the satisfaction of either side.

7 See, for example, U.S. Army Field Manual 27–10, The Law of Land Warfare, para. 187a (1956); Article III, Code of Conduct for Members of the Armed Forces, Exec. Order No. 10631, Aug. 18, 1955, 3 CFR, 1954–1958 Comp., at 266; United Kingdom, The Law of War on Land, Being Part III of the Manual of Military Law, para. 246, n. 1 (1958); Code de Justice Militaire, Armee De Terre, Art. 235 (Dalloz, 1963).

8 47 Stat. 2021; 2 Bevans 932; 27 AJIL SCPP. 59 (1933).

9 On Dec. 9, 1970, the UN General Assembly adopted a Resolution in which it:

Urges compliance with Article 109 of the Geneva Convention of 1949 . . . which provides for agreements with a view to the direct repatriation . . . of able-bodied prisoners of war who have undergone a long period of captivity. (A/RES/1676 (XXV) (1970)).

In Havens, Release and Repatriation of Vietnam Prisoners, 57 ABAJ 41, 44 (1971), the author argues that after 18 months as a prisoner of war an individual should be entitled to release and repatriation. However, he cites no authority for this interpretation of the provisions of the 1949 Convention.

10 Article 109(3) prohibits the involuntary repatriation of sick and injured prisoners of war during the course of hostilities. Normal rules of treaty interpretation would seem to make this provision inapplicable to the repatriation during hostilities of ablebodied prisoners of war unless it can be said that as a result of the setdement reached in Korea in 1953, supported by a number of resolutions of the UN General Assembly, a norm of international law has evolved which prohibits the involuntary repatriation of prisoners of war under any circumstances.

11 Although both the 1929 and the 1949 Conventions contemplate that such repatriations will be accomplished under agreements between the Parties, there is certainly no reason why one Party cannot elect to take such action unilaterally if it so desires. Article 6(2) of the 1949 Convention specifically mentions this possibility and Article 118(2) of that Convention, dealing with post-hostilities release and repatriation, specifically provides for, and even requires, unilateral action if no agreement covering the subject is reached by the belligerents. Pakistan initiated this unilateral action in November 1972 with respect to the Indian prisoners of war it then held. N.Y. Times, Nov. 28, 1972, at 1, c. 2.

12 Article 117 of the 1949 Convention provides that “[n]o repatriated person may be employed on active military service.” This provision is, of course, quite ambiguous. Pictet, (ed.), Commentary on the Geneva Convention Relative to the Treatment of Prisoners of War 538–39 (1960)Google Scholar (hereinafter cited as Pictet, Commentary). U.S. military authorities have construed Article 117 as only prohibiting the repatriated serviceman from participating in combat against the former Detaining Power and not as requiring his complete separation from the military service. American Prisoners of War in Southeast Asia, 1971, Hearings before the Subcomm. on National Security Policy and Scientific Developments of the House Comm. on Foreign Affairs, 92d Cong., 1st Sess., 350 (1971) (hereinafter cited as 1971 Hearings).

13 Although the Report of the International Committee of the Red Cross on its Activities During the Second World War (September 1, 1939-June 30, 1947) (1948) includes a 21-page discussion of the numerous repatriations of seriously wounded and seriously sick prisoners of war in Europe (Vol. I, at 373–93), it does not even mention any proposal by a belligerent or neutral state or a humanitarian organization to implement Article 72 of the 1929 Convention.

14 Probably no armed conflict which has occurred since 1945 (except for those involving the French in Vietnam, Korea, and the later Vietnamese conflict) has really continued for a long enough time for any prisoner of war to be considered as having “undergone a long period of captivity.”

15 The Dix-Hill Cartel, supra notes 5 and 6, failed because in the early years of the American Civil War the equal exchange of able-bodied prisoners of war favored the Union, while later in the conflict it favored the Confederacy, Lewis & Mewha, supra note 5, at 30. Of course, this criticism is not true of internment in a neutral country, the alternative provided for in Article 109(2).

16 See Lindsay, (ed.), Swiss Internment of Prisoners of War 3 (1917)Google Scholar:

The fear expressed by France [in February 1915] that under the system of exchange wounded soldiers would be returned to Germany who could still be of military service [an amputee could work in a depot, thus relieving an able-bodied solider], was common to other belligerents. . . .

17 Levie, , Prisoners of War and the Protecting Power , 55 AJIL 374 (1961)CrossRefGoogle Scholar.

18 Ibid., at 394–96. See also I ICRC Report, supra note 13, at 11–29.

19 Fourth Meeting of the Joint Committee, Final Recobd of the Diplomatic Conference of Geneva of 1949, Vol. IIB, at 18, 21 (hereinafter cited as Final Record).

20 Annex 24, Final Record, Vol. Ill, at 32.

21 Final Record, Vol. IIB, at 60 (emphasis added).

22 Article 7/8/8/8, ibid., at 346.

23 At some point in the deliberations the word “body” was changed to “organization” but this author was unable to pinpoint the event in the Final Record, a result not unique to this particular matter.

24 Pictet, Commentary, 107–08.

25 Both the phrasing of the provision of the 1949 Convention and the doctrine of ejusdem generis indicate the validity of the conclusion reached by the ICRC that it was to be considered “as an example of what is meant by ‘impartial humanitarian organization’.”

26 No matter how politically remote its policymakers and other members may be from the cause of the war and from the belligerents, they will, of course, inevitably have individual prejudices with respect to any armed conflict that may be in progress. However, if the organization is to be able to maintain its aura of “impartiality,” even these individual preferences must be both suppressed and concealed because of the human difficulty of ascribing “impartiality” to an organization whose policymakers and other members have publicly expressed individual preferences and prejudices.

27 During the hostilities in Korea the Chinese charged, with the support of the USSR, and totally without justification and solely for political reasons, that the ICRC was a “capitalist spy organization.” United Kingdom, Ministry of Defence, Treatment of British Prisoners of War in Korea 33–34 (1955). The actions of the North Vietnamese during the hostilities in Vietnam would seem to indicate a similar attitude. Falk, , The American POWs; Pawns in Power Politics , The Progressive, March 1971, at 13, 16 Google Scholar. Under the circumstances, it is unexpected, indeed, to find the USSR communicating to the Secretary-General of the United Nations its belief in the need for the ICRC to undertake additional tasks relating to the protection of human rights in armed conflict and omitting any suggestion for the use of “other impartial humanitarian organizations” for this purpose. Report of the Secretary-General, Respect for Human Rights in Armed Conflict, UN Doc. A/8052, Sept. 18, 1970, at 119,120.

28 During World War II, the Young Men’s Christian Association, the National Catholic Welfare Conference, and other similar organizations, were permitted, in varying degrees, to supplement the humanitarian work of the ICRC on behalf of enemy prisoners of war held in the United States. Rich, (ed.), A Brief History of the Office of the Provost Marshal General, World War II , at 489–91 (mimeo., 1946)Google Scholar. Some of these organizations might, upon investigation, qualify under Article 9. While their orientation was, for the most part, primarily religious, they normally offered humanitarian assistance to all enemy prisoners of war, without regard to their origin, nationality, or religion. Of course, religious supplies furnished by them were limited to those of their own denomination.

29 When the representative of the United States at the 1949 Diplomatic Conference supported the proposed change in the draft of Article 9 and referred to “welfare organizations of a non-international character,” he unquestionably had in mind the operation of such organizations in their own country, based upon the experience in the United States during World War II mentioned in the previous note.

30 There could certainly be little dispute that, during World War II, it would have been impossible for the American Red Cross, or the YMCA, or the National Catholic Welfare Conference, all American-established and based humanitarian organizations, to have obtained permission to function in Germany or Japan, or for the German or Japanese Red Cross to have obtained permission to function in the United States. The same was indubitably true of the American Red Cross, the Red Cross of the Republic of Vietnam, and the Red Cross of the Democratic Republic of Vietnam (DRV) during the hostilities in Vietnam.

31 No matter how humanitarian may have been H. Ross Perot’s motives, his misguided activities on behalf of the American prisoners of war then held in North Vietnam could not have been considered as falling within any provision of the 1949 Convention.

32 The “institutional basis” and the “operational experience and tradition” need not necessarily have been prisoner-of-war oriented, or even war-oriented.

33 Some official action previously taken by the international organization might have called in question its impartiality but it would not affect its “institutional” qualifications.

34 It can be assumed that the People’s Republic of Korea and the Democratic Republic of Vietnam would rely on this provision in justification of their right to refuse to allow the ICRC to perform its customary humanitarian functions within their territories. Whether they did indeed act on the basis of law is another question.

35 See text in connection with notes 19–23, supra.

36 Final Record, Vol. IIB, at 60.

37 Pictet, Commentary, 109.

38 Supra note 30. If Switzerland were a belligerent, the ICRC would undoubtedly find itself refused permission to function in the territory of that country’s enemy, despite the century-old tradition of impartial humanitarianism which the ICRC enjoys. It could, of course, continue to perform those humanitarian functions which might be performed in Switzerland.

39 This is why the reservation made to Article 10 of the 1949 Convention by the USSR and the other Communist countries (including, subsequently, the DRV) and objected to by the Western countries, appears to have a valid basis. Levie, supra note 17, at 385, n. 32. That article provides that if there is no Protecting Power, and, for some reason, a new Protecting Power cannot be designated, the Detaining Power may request the services of a neutral state or of a humanitarian organization such as the ICRC to perform the functions of the Protecting Power. The Communist reservation properly makes the consent of the Power of Origin necessary for the designation of such a substitute. (For a more detailed discussion of the reservation to Article 10, See text at pp. 707–09.)

40 “Observations” Nos. (1) and (4), Falk, at 477.

41 See text at pp. 694–95 and note 9, supra.

42 Mrs. Cora Weiss, co-chairman with David Dellinger of this Committee, testified as follows with respect to this group:

The Committee of Liaison was established on January 15, 1970, after three women, including myself, of Women Strike for Peace, returned from a trip to North Vietnam. In our announcement of formation and purpose, we stated that the purposes of the committee were (1) to facilitate communication between prisoners and their families; and (2) to inquire on behalf of families regarding the status of their missing relatives.

1971 Hearings 230. An “Information Sheet” issued by the Committee of Liaison during the month of its inception stated that it had been established “at the request of the North Vietnamese.” The Information Sheet goes on to give assurances that the Committee of Liaison “is not in any sense representing the government of North Vietnam.” Ibid., 532.

43 Falk, 473–74.

44 The significance of mentioning a time period instead of an exact date is discussed in note 86, infra.

45 The men released were Sgt. Edward R. Johnson, Sgt. Daniel L. Pitzer, and Sgt. Jackson, James E. N.Y. Times, Nov. 13, 1967, at 2, c. 6 Google Scholar. On three subsequent occasions the Viet Cong released a total of six additional American servicemen in the field, allowing them to return to U.S. military control without the benefit of an escort.

46 The men released were Maj. Norris M. Overly, USAF, captured in Sept. 1967; and Capt. Jon D. Black, USAF, and Lt. (j.g.) Matheny, David P., USN, both captured in Oct. 1967. N.Y. Times, Feb. 17, 1968, at 1, c. 8 Google Scholar.

47 The men released were Maj. Low, James F., USAF, captured in Dec. 1967 Google Scholar; Capt. Carpenter, Joe V., USAF, captured in Feb. 1968 Google Scholar; and Maj. Thompson, Fred N., USAF, captured in March 1968. N.Y. Times, Aug. 5, 1968, at 15 Google Scholar, c 1.

48 The men released were Frishman, Lt Robert F., USN, captured in Oct. 1967 Google Scholar; Seaman Douglas B. Hegdahl, captured in April 1967; and Capt, Rumble, Wesley L., USAF, captured in April 1968. N.Y. Times, Aug. 5, 1969, at 1, c. 2 Google Scholar.

49 Lt. (j.g.) Gartley, Markham L., USN, had been captured in Aug. 1968 Google Scholar; Lt (j.g.) Charles, Morris A., USN, had been captured in Dec. 1971 Google Scholar; and Maj. Elias, Edward K., USAF, had been captured in April 1972 Google Scholar. David Dellinger was once again one of the emissaries selected by the DRV to receive the release of the three prisoners of war, but this time it was not in his capacity as a member of the “National Mobilization Committee,” but in his parallel capacity as a member of the Committee of Liaison. N.Y. Times, Sept. 17, 1972, at 3, c.4.

50 Only Frishman could be said to have had a physical condition which might have warranted his release and repatriation on medical grounds. Gartley, who had been a prisoner of war for more than four years, certainly qualified as a “longtime” prisoner of war. Hegdahl had been a prisoner of war for 28 months, Frishman for 22 months, and Rumble for 16 months. All of the other men released and repatriated by the DRV had been prisoners of war for less than one year (actually, for periods of between 4 and 9 months).

51 Falk, 467, 471–72. Falk seems to have been surprised that no answer was received from the U.S. Government by the Committee of Liaison to this and other messages sent from Hanoi. Ibid., 467. It is difficult to believe that he really expected answers.

52 While the cablegram does state that the conditions it contained were “[i]n accordance with the expressed expectations of the North Vietnamese Government,” Falk indicates clearly that its contents were developed by the “escort group” as an outgrowth of internal discussions which took place in Hanoi with respect to the group’s “responsibilities” (ibid., 466–67) and that the releases by the DRV were, in fact, unconditional. Ibid., 471.

53 It is, of course, possible that the desire of the Committee of Liaison to retain “custody” of the three men and to travel by civilian, rather than military, aircraft, could have been motivated by the publicity anticipated from a press conference and reception planned for their arrival at Kennedy Airport. Ibid., 468.

54 Ibid., 471.

55 The use of the term “furlough” shows a practical ignorance of contemporary military vocabulary. It was never applicable to officers and disappeared from the military lexicon shortly after World War II. Only a certain antiquarian interest would have prompted the three officers to request a “furlough.”

56 Was the granting of 30-day “furloughs” one of the “expressed expectations of the North Vietnamese Government”? See note, 52, supra.

57 For example, after Korea some 4,400 prisoners of war were released and repatriated. Each was put through a processing which had been well organized beforehand and which included preliminary hospitalization and medical examination in Japan, return to the United States when medically approved, further hospitalization either in Hawaii or in the military hospital nearest to his home, complete medical examination and treatment, and extended leave as soon as medical clearance was granted.

58 Falk, 471–72. Elsewhere reference is made to “reported abuses in relation to prior treatment” and the suggestion is advanced that there should be “a preliminary medical examination, perhaps under neutral auspices” (ibid., 472, emphasis added). Incredible as it may seem, these two quotations refer to the treatment of repatriated prisoners of war in military hospitals in the United States!

59 Ibid., 472. Here and elsewhere throughout the article statements appear implying that anything done for the benefit of repatriated prisoners of war in the United States occurred solely because of public pressure by the escort group and in spite of strong governmental (or military service) predilections to the contrary. This, of course, disregards the fact that everything done for these men, as well as those who preceded and followed them, evolved from a refinement of the procedures for repatriated prisoners of war applied after World War II and Korea.

60 Supra note 12.

61 Pictet, Commentahy, 539.

62 If one of these men had resigned from the military service and had then gone on a speaking tour in support of U.S. participation in the hostilities in Vietnam, he clearly would not have violated Article 117 of the 1949 Convention; but he would have violated the broader prohibition of the fourth “guideline.”

63 Falk, 473–74.

64 1971 Hearings 25.

65 Falk, 474 and n. 13. (In the cited note, the activities of the “National League of Families” are equated to the activities of H. Ross Perot.)

66 Ibid., 474.

67 Ibid.

68 Ibid., 475.

69 Ibid., 477.

70 Ibid.

71 Ibid.

72 See text supra at pp. 700–01.

73 Falk, 474.

74 Ibid.

75 274 UNTS 339.

76 See note 39 supra. The USSR reservation provides for “the consent of the Government of the country of which the prisoners of war are nationals.” 191 UNTS 367.

Either wording refers, of course, to the Power of Origin.

77 Final Record, Vol. IIB, at 347.

78 Geneva Conventions for the Protection of War Victims, Hearing before the Senate Comm. on Foreign Relations, 84th Cong., 1st Sess., on Executives D, E, F, and G, 82d Cong., 1st Sess., at 62 (1955).

79 Falk, 475.

80 Ibid.

81 Ibid., n. 17.

82 6 UST 3316, 3514; 213 UNTS 383.

83 Puxoud, , Reservations to the 1949 Geneva Conventions 5 (1958)Google Scholar.

84 A number of questions, basically along this same line, appear in the Falk article, at 477 and 478. They are not answered except by the statement that “North Vietnamese motivations are of no account.” Ibid., 478.

85 When the Viet Cong made the first prisoner-of-war release, in Nov. 1967, Nguyen Van Hieu, the VC representative in Phnom Penh, Cambodia, where it took place, was quoted as follows:

Mr. Hieu said that the soldiers were being released in cooperation with American opponents of the United States involvement in the Vietnam war in the expectation that they would be able to contribute usefully to the United States peace movement.

N.Y. Times, Nov. 13, 1967, at 2, c. 6. This revealing statement was not repeated on the occasion of the subsequent releases.

86 Some evidence of this can found in the fact that with each release of prisoners of war there would be a great fanfare when the announcement of the proposed release was made, or when the ecort group set off for Hanoi, or when it arrived in Hanoi—and then there would be an unexplained delay of a number of days while the publicity, of course, continued. For example, in the second 1968 release the delay was “pretty close to three weeks” (1971 Hearings 222) and in the 1972 release of which Falk gives us a blow-by-blow description the unexplained delay was from Sept. 17 to 24 (Falk, 466). While it is true that a Gallup poll conducted in Feb. 1970 revealed that a majority of Americans did not believe the glowing statements made by the members of the escort groups upon their return to the United States, a surprising number of Americans apparently did believe them—and even if the number had been much smaller, the propaganda value to the DRV far outweighed the cost, which was negligible.

87 Actually, it is probable that no criteria were used. See note 50 supra. In the July-Aug. 1968 release the three pilots released had been prisoners of war for only four to seven months. Note 47 supra. Concerning the selection of these three individuals, one witness before the House Subcommittee testified;

When Thompson, Low and Carpenter were brought together at the time of their release, they tried to figure out why they had been selected. They determined, as many others have since determined, that the obvious conclusion was that none of them had been held very long, all were in apparent good health, they were not debilitated or injured, nor had they been subjected to extremes of brutality. And, too, each had been penned up separately, in a solitary cell, barred from learning all they might otherwise have learned about the general condition of the prison camps or the general condition or treatment of other prisoners.

As Major Thompson says, “We were safe bets to release. People would See us and say, “Maybe they do take good care of their prisoners’.”

1971 Hearings 387.