Treaties, States Parties and Commentaries
Treaties and Documents
Geneva Conventions of 1949 and Additional Protocols, and their Commentaries
Historical Treaties and Documents
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
. -- USE OF WEAPONS
The Brussels Declaration stated, in Article 28, paragraph 2: "Arms may be used, after summoning, against a prisoner of war [p.246] attempting to escape". That clause was not, however, included either in the Hague Regulations or in the 1929 Convention, not because its validity was disputed, but simply because "it was felt that this was a delicate matter to express in a Convention" (1).
Following abuses which occurred during the Second World War, the Conference of Government Experts supported the proposal by the International Committee of the Red Cross that an express provision on this subject should be inserted in the chapter concerning discipline (2).
Captivity is based on force, and although there can be no doubt on the matter, it is recognized in international customary law that the Detaining Power has the right to resort to force in order to keep prisoners captive (3). At the same time, this consideration also limits the use of weapons against prisoners. Whether in the case of attempted escape or any other demonstration (e.g. mutiny or revolt), the use of weapons "shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances".
Let us first consider escape. "An extreme measure" means that fire may be opened only when there is no other means of putting an immediate stop to the attempt. From the moment the person attempting to escape comes to a halt, he again places himself under the protection of the Detaining Power, and Article 23 (c)
of the Hague Regulations concerning the Laws and Customs of War on Land is applicable to him (4).
It is also important, however, to make a distinction between escape proper and acts or phases preparatory thereto. If a prisoner is surprised within the camp limits while making preparations to escape, there is no justification for opening fire on him. During the Second World War, the belligerents generally solved this problem by establishing "death-lines" ' (lignes de sécurité, Sicherheitslinien) ', which [p.247] prisoners of war were absolutely forbidden to cross, under penalty of being fired on by guards and sentries (5).
Even when there is justification for opening fire, the Convention follows international custom and the national legislation of most countries, and gives prisoners of war one last chance to abandon the attempt and escape the penalty. Fire may not be opened automatically, even when all the required material conditions have been met; the use of weapons must always be preceded by warnings "appropriate to the circumstances", which may either be verbal, by means of an instrument (whistle, bell, etc.), or by a warning shot. The essential thing is that the warnings must be clearly perceived and understood by those to whom they are addressed. The number of warnings is not stipulated, but it will be noted that the Convention uses the plural form, which necessarily implies at least two warnings; the figure of three is generally considered as statutory. It should also be pointed out that although, during the Second World War, some countries took very harsh measures against attempts to escape, the Power of Origin was often in part
responsible because it encouraged such attempts by every possible means. One cannot require the Detaining Power to reinforce the sentry units indefinitely at the expense of its active combat forces. The only remaining alternative is therefore to adopt very strict measures in order to intimidate prisoners of war (6).
The use of force by guards may also be justified in the case of rebellion, and the remarks already made above concerning attempts to escape are applicable here also. The analogy is not absolute, however, and in the event of mutiny there may be other possibilities as regards the weapons to be used. Before resorting to weapons of war, sentries can use others which do not cause fatal injury and may even be considered as warnings -- tear-gas, truncheons, etc. These measures may prove inadequate, however, and from the moment when the guards and sentries are about to be overwhelmed, or are obliged to act in legitimate self-defence, they are justified in opening fire. Events in Korea provided a tragic example of a situation of this kind (7), and it [p.248] cannot be too strongly emphasized, therefore, that the Detaining Power must keep a close watch on the situation in order to avoid any such serious developments. In any case, if the guards or sentinels have to open fire on prisoners of war, they should first aim low, unless they are
themselves in imminent danger, so as to avoid inflicting fatal wounds.
* (1) [(1) p.246] Fauchille, quoted by BRETONNI RE, op. cit., p.
338. In his report on the Peace Conference ' (Actes de la
Conférence de la Paix, ' The Hague, 1899, p. 52), ROLIN
stated: "The sub-committee deleted this clause. In so
doing its intention was in no way to dispute the right to
fire on an escaping prisoner of war, if military
regulations so permit; but it considered it useless, to
say the least, to include in the Declaration an Article
which would in some way appear to give specific approval
to such an extreme measure";
(2) [(2) p.246] See ' Report on the Work of the Conference of
Government Experts, ' pp. 212-213;
(3) [(3) p.246] See SCHEIDL: op. cit., p. 446;
(4) [(4) p.246] This provision reads as follows: "In addition
to the prohibitions provided by special Conventions, it is
especially forbidden:... (c) To kill or wound an enemy
who, having laid down his arms, or having no longer means
of defence, has surrendered at discretion.";
(5) [(1) p.247] For examples, see BRETONNI RE, op. cit., pp.
339-343, and Hans K. FREY: ' Die disziplinarische und
gerichtliche Bestrafung von Kriegsgefangenen, ' thesis,
Berne, Vienna, 1948, pp. 44-45;
(6) [(2) p.247] See FREY: op. cit., pp. 45-46;
(7) [(3) p.247] The following were the most tragic events
which occurred in Korea: on October 1, 1952, 56 prisoners
were killed and 111 wounded at Cheju Island; on December
14 of that year, 84 were killed and 118 wounded at Pongam
Island; on March 7, 1953, 23 were killed and 42 wounded at
Yoncho Island, where there were also 4 killed and 45
wounded on April 18 of the same year;