By Anne E. Mahle
Since medieval times military leaders have attempted, with varying degrees of success, to develop and adhere to standards of conduct regarding the status of individual members of the opposing military force who are captured during combat. It is unclear when the term "prisoner of war" was first used. The Hague Convention on the Laws and Customs of War on Land (Hague II), promulgated in 1899, however, was the first international convention to use this identifying label.
The earliest standards governing the treatment of combatants and non-combatants (or civilians) during warfare stemmed from traditions of chivalry. These traditions held that a captured warrior could not be used against his own forces and that these individuals could not simply be executed upon capture (although they often were). These chivalric traditions stemmed principally from kings' "ordinances of war," were not codified in any meaningful way until late in the nineteenth century, and were, at best, difficult to enforce.
The first international agreement to address the condition of soldiers on the battlefield was the 1864 Convention on the Amelioration of the Condition of the Wounded on the Field of Battle, referred to commonly as the Red Cross Convention. The Red Cross Convention came about because of the horror witnessed by townspeople at the Battle of Soleferino, where tens of thousands of soldiers were left wounded and dying on the battlefield; like nearly every development in the laws of war, it took a shocking event to effect change.
While not specifically addressing the condition of soldiers captured by opposing military forces, the 1864 Convention on the Amelioration of the Condition of the Wounded on the Field of Battle set the stage for later conventions that would address the standards and laws governing the treatment of prisoners of war. Furthermore, it provided soldiers injured on the battlefield with some basic protections. This convention signaled the formation of the International Committee of the Red Cross and represented the first international attempt to establish standards for the treatment of soldiers by all military forces, regardless of their allegiance.
At the same time that diplomats were seeking to establish standards governing the care of soldiers involved in armed conflict between nations, the United States Army was struggling to set forth a coherent set of regulations to govern the conduct of its soldiers in the field during the Civil War. At the request of President Lincoln and United States military leaders, Francis Lieber, a military and international law scholar, created, in 1863, the first comprehensive code of conduct for the United States Army. Entitled "General Orders 100: Instructions for the Government of Armies of the United States in the Field," this document is more commonly referred to simply as the "Lieber Code."
The Lieber Code broke new ground in dictating military conduct during warfare. Principally, it created a clear distinction between permissible conduct towards combatants (also called belligerents) and non-combatants. Non-combatants -- the civilian population -- were to receive fundamentally different treatment during armed conflict, including protection from the conflict. In addition, the Lieber Code established specific conditions for the treatment of prisoners of war by the capturing forces.
Pervasive throughout the Lieber Code was an understanding that all soldiers were to be treated equally regardless of "class, color, or condition." Professor Lieber was particularly concerned about the treatment African-American Union soldiers would receive if captured by the Confederacy. The importance of this tenet, however, did not end with the United States Civil War; it and would play an important role in World War II, when, as happened at Berga, Jewish Allied soldiers were not afforded the required prisoner-of-war protections.
