The most significant early development in the law governing the treatment of prisoners of war stemmed from the experiences of World War I. The 1929 Conventions Between the United States of America and Other Powers, Relating to Prisoners of War -- often called the 1929 Geneva Convention -- was based in large part on these practical experiences as well as on two previous international agreements: the 1899 and 1907 Hague Conventions on the Laws and Customs of War on Land.
The 1899 Hague Convention's Annex devoted eighteen of its sixty articles to laying out the treatment and maintenance of prisoners of war. These same eighteen articles, with minor changes in text, were included in the 1907 Hague Convention. These early conventions set forth basic principles that continue to govern the treatment of prisoners of war. Most importantly, these conventions defined who qualified for protection as a prisoner of war.
In order to qualify, one must be a belligerent. A belligerent is a person who is part of an army, militia, or volunteer corps that is (1) commanded by a person responsible for his subordinates; (2) wears a fixed, distinctive emblem that is recognizable at a distance; (3) carries arms openly; and (4) conducts its operations in accordance with the laws and customs of war. Under these Conventions, if an individual captured by the enemy met this criteria, he or she was entitled to be treated as a prisoner of war.
Perhaps surprisingly, the Hague Conventions envisioned that prisoners of war could and most likely would perform labor while serving as prisoners of war. Their work, however, was to be compensated; could not involve working conditions poorer than those set for the civilians of the detaining country; and could not be connected to the war effort. The other recognizable tenets set forth in the 1899 and 1907 Conventions include:
- "Prisoners of war are in the power of the hostile Government, but not of the individuals or corps who capture them."
- Prisoners of war "must be humanely treated."
- Prisoners of war can be detained, but cannot be "confined except as in indispensable measure of safety and only while the circumstances which necessitate the measure continue to exist."
- "Every prisoner of war is bound to give, if he is questioned on the subject, his true name and rank, and if he infringes this rule, he is liable to have the advantages given to prisoners of his class curtailed."
- A government holding prisoners of war is responsible for their maintenance and, in the absence of a special agreement between the warring countries, prisoners of war shall be treated the on the "same footing as the troops of the Government who captured them" with respect to "board, lodging, and clothing."
- "Prisoners of war shall enjoy complete liberty in the exercise of their religion, including attendance at the services of whatever church they may belong to, on the sole condition that they comply with the measures of order and police issued by the military authorities."
The 1929 Geneva Convention built upon the framework and principles established in the 1899 and 1907 Hague Conventions and the experiences of World War I, and the 1929 Geneva Convention was in force throughout World War II. As a signatory to the Convention, Germany was obligated under international law to uphold its mandates and observe its limitations.
The 1929 Convention adopted the 1907 Convention's prisoner of war definition but expanded it to include individuals that were captured in the "course of military operations at sea or in the air." While incorporating all of the protections found in the Hague Conventions, the 1929 Convention was more expansive and specific in its protections, defining more explicitly such terms as "humane treatment." The 1929 Convention also first articulated the principle that prisoners of war must be "protected, particularly against acts of violence, insults, and public curiosity."
The 1929 Convention recognized, for the first time, that women may also become prisoners of war and sought to ensure that "women shall be treated with all the regard due their sex." It also adopted the Lieber Code's principle that all prisoners of war should be treated equally. The only lawful distinctions in treatment were those based on rank, mental or physical health, professional qualifications, or sex, and then these distinctions in treatment would only "profit" the protected individual, the prisoner of war.
The 1929 Convention added the protection from interrogation by the detaining country, to wit, "no coercion may be used on prisoners to secure information as to the condition of their army or country. Prisoners who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind whatever." Furthermore, the Convention required the detaining party to evacuate prisoners of war away from zones of combat as quickly as possible and required that they "not needlessly be exposed to danger while awaiting their evacuation from the combat zone."
The 1929 Convention also articulated the conditions under which prisoner-of-war camps were to be run, including the sanitary conditions, and the organization of the camps including the election of prisoner representatives. Building off of the limitations placed on prisoner labor found in the Hague Conventions, the 1929 Convention articulated in detail that it was forbidden to use prisoners of war at "unhealthful or dangerous work" and that prisoners could not be involved in the "manufacturing and transporting arms or munitions of any kind or for transporting material intended for combat units."
The Convention also required belligerents to send seriously sick and injured prisoners of war either back to their own country or to a neutral third country as soon as the individual was in a condition capable of withstanding transport. In addition to these protections, the 1929 Convention established many detailed protections for prisoners of war, including the right to communicate through letters with individuals outside of the prison camp as well as the right to religious, intellectual, and social pursuits. Furthermore, the Convention required the repatriation of prisoners of war as soon as possible upon the cessation of hostilities. Interestingly, at the close of World War II this final requirement became a major challenge for the Allies, as many of the prisoners of war from Central Europe and the Soviet Union did not wish to return to their country of origin.
All of these protections, and many more that are not assessed in this article, were in place under international law. Both the United States and Germany had signed and ratified the treaty. The International Committee of the Red Cross was present throughout World War II. And yet the atrocities and ill treatment this Convention was designed to prohibit occurred.
The working conditions at Berga, the type of labor, and the fact that it was forced and unpaid labor were in blatant violation of the Convention's mandates. The condition of the Berga prisoners upon liberation -- and, of course, the high number of deaths -- demonstrates that the Germans grossly neglected many other requirements regarding the treatment of prisoners. Documenting the entirety of the legal violations at Berga would require hundreds, if not thousands, of pages, and this article will not pinpoint the specifics. Yet even a cursory glance at the Berga tragedy reveals overwhelming and blatant disregard for the 1929 Convention.
