Article
Reference
The status, treatment and repatriation of deserters under international humanitarian law
SASSÒLI, Marco
SASSÒLI, Marco. The status, treatment and repatriation of deserters under international
humanitarian law. Yearbook / International Institute of Humanitarian Law , 1985, p. 9-36
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THE STATUS, TREATMENT AND REPATRIATION OF DESERTERS UNDER
INTERNATIONAL HUMANITARIAN LAW
by Marco §.assoli*
CONTENTS
1. Introduction: 1. The ecal issue - 2. The legal issue -3. General scope.
U. Definition: '1. An inapposite notion: the concept of «desenion» under municipal iaw - 2. Suggested defïnition adaptcd (Q the requircmcnts of International Humanitarian Law - 3. The various elemenls of the definilion: A. The non-controversial clements; B. The addilional clements wc suggesl: a) implementation of the Întcnt 10 sever allegiance; b) the point in time wh en the Întent 10 sever allegiance must be cxpressed; c) the nccd to express personally the intent to sever allegiance - 4. Must a distinction be drawn bClwccn deserters and defeclors? - 5. Persans qualifying as deserters wiLhin the meaning of our definitjon - 6. Ways of slaling the Întenl to sever allegiance.
nI.
The posilion of deserlers under International Humanitaria" Law:1. Deserters who have fallen into the power of the adverse Party:
A. StalUs: a) The Literature; b) Dcserters are not prisoners of war; c) Descrlers are protec[cd civilians; B. Trealment to be granted to deserters - 2. Status and lreatme11l of prisioners of \Var who wanL 10 sever their allegiance whilst in captivity - 3. Descrters in a neutral country: A. The distinction between deserters and mililary internees;
B. Status of dcserters in a neutral country; C. The right to be admitted inlo a neutral country; D. lnternrnent; E. Righl of asylum - 4. Transmission of information regarding deserlers: A. Transmission of information in general; B. Transmission of prejudicial information regarding prisoners of war; C. Transmission or information regarding deserter!) - 5. Repatriatiol1 of deserters; A.
The general issue: Repatriation of prisoners of war against their will:
a) During hostilities; b) Artel' the cessation of hostilities; B.
RepalIiation of deserters .
• ) Mcmber of the Legal Division of Lhe International Commitlee of the Red Cross. The views exprcssed in this paper are those of the author and are not binding on the ICRC.
J. INTRODUCTION
J. The real issue
Although desertion is a phenomenon as old as war itself, it has taken on increased importance in rcecnt years. There are several rcasons for this. As war has been proscribed and is no longer deemed a lawful means of settling disputes among States, combatants are no longer viewed with quite 50 much detacbment.
They are no longer pereeived merely as tools ta carry out a poliey, devoid of any responsibility for that policy, but as supporters of an ideology. ln a «guene- croisade» (1) (crusade war), nQl only nations or peoples are al war, but al50 opinions, ideologies or religions (2),
Hence the temptation, for a Detaining Power, ta win eaptured enemy eombatants over la the ideology they were fighting, and henee tao the tendeney, for combatants themselves, to embrace - with more or less conviction, or under more or less eoercion - the ideology of the Power into whose hands they have fallen. For the Power on whieh they depend, and occasionally for the Detaining Power tao, these combatants are «deserlers».
The Detaining Power has another reason ta label many captured eombatants as «deserters». Il believes tbat in this way, il can divest them of the protection to which prisoners of war are entitled under international law.
2. The legal issue
Any combatant who has fallen into lbe power of tbe adverse party is a prisoner of war.
The status and treatment of prison ers of war are provided for in the Third Geneva Convention relative ta the Treatment of Prisoners of War(l) (hereinafter referred la as «the Third Conventiom», ta whieh 161 States are now party.
The Third Convention sets fortb delailed regulations on lhe rights and duties of prisoners of war, on tbeir material and psychologieal conditions of internmenl, discipline, penal and disciplinary sanctions, lheir repatriation and tbe lransmission of information eoneerning them. It entilles delegates of the Protecting Power and of the International Committee of the Red Cross (lCRC) to visit prisoners of war and la inlerview them without witnesses (4), As the nlles
1) Flory, William E.S. «Vers une nouvelle conception du prisonnier de gucrre)). I?evlle Oenérol de Droit InremaliOlllll Public (RGDIP), 58, 1954, (hereinarler referred to as Flory. UCD/P). p. 56.
2) ln f<lct. «collventÎona!)) wars occurred only very rarcly and then. ollly;n the days or nation-stCltcS.
ln ancicm limes. in the Middle Ages ancl al Ihe lime of the Napoleonic Wars. \Var was ju .. t as
«idcological)) as nowadays.
J) 75 UNTS 135.
4) Cr. Art. 126 of Lhe Third Geneva ConvcmÎon.
governing the status and treatment of prison ers of war are extremely comprehensive, the question whether deserters are prisoners of war has significant practical implications. If deserters are prisoners of war, they are enlitled to full protection under the Third Convention, but must spend their whole caplivity in the company of former comrades-in-arms who did Ilot desert;
they cannot be enlisted in lhe armed forces of the adverse party - even if they wish to be; their capture must be reported to the Power on which they depend, and as a rule, they musl be repatriated allhe end of aClive hostilities. Ali lhis mal' in fact be c1etrimenlal to them or their families still in the hands of the Power on which tbey depend and who unforlunalely oflen have LO fear discriminatory measures when that Power discovers the desertion.
If, on the other hand, deserters are nOl prisoners of war, the following questions arise: What rules are applicable to them? How does one differentiale belween deserters and other combatants? How can a Delaining Power be prevented from shirking its obligations by labelling many captured combatams as «deserters»?
Unfortunately, these questions are not merely academic; tbey are problems with which the people who deal \Vith tbe prolection of victims of present armed conflicts are confronted every day. ln lnternational Humanitarian Law - i.e. basically lhe 1907 Hague Convention No. IV, (5) the Geneva Conventions of 1949 (6) and their 1977 Prolocols 1 and Il al - there are no provisions relaling specifically to deserters. The Third Convention (8) and Pro(ocol 1 (9) define neither the term «deserten> nor the status or treatment of deseners. Thus, only by interpreting Lnternational Humanitarian Law, taking inLO due consideration Hs
5) Hague Convention No. IV wilh annexcd Regulalions respec[ing the Laws and Customs of War on Land. of 18 October 1907 in: Levie. Howard. DoC'umellfs 01/ Prisollers of !t'al'. International I.a\\
Studie!>. U.S. Naval Wur College. Vol. 60. Newpon. 1979 (hereinafter referred [0 as Levie.
Doel/II/el/Cs). p. 76*80.
6) (ieneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in Ihe rielù of 12 August 1949, First Convention. 75 UNTS 31*83;
Geneva ('onvenlÎon for Lhe Ameliormion of Ihe Condilion of the Wounded. Sick and Shipwrccked Membcrs of Armcd Forces al Sea of 12 August 1949. Seconù Convention. 75 UNTS 85*
(]J:
GenevéI Convention rela[ive 10 Ihe Trcatlllcl\[ or Prisoners of War of 12 AuguSI 1949. Third Convention. 75 UNTS 135*285;
Geneva Convention relative [0 the PrOleclion of C'ivilian Persons in Time or War of 12 August 1949. Fourlh Convenlion. 75 UNTS 287·417.
7) PrOlocol Additional tO the (ieneva Convention!> of 12 AuguSt 1949. and relutÎng tO the Protection o(Viclims of International Arllled Conrlicts (Pro[ocoll). of 8 June 1977 and
PrOlocol Addition<tl to [he Geneva Conventions of 12 Augus[ 1949. and re)ating I<l the Protection of Viclims of Non-Internationall\rmed C'onnicLs (PrOlocol Il). of 8 June 1977. ILM. Vol. 16. 1391.
1442 (1977).
H) Cr. Wilhelm. René-Jean. ((Peu[-on modi!ïer le Manu des prisonnier!; de guerre'?)) in: Revlle Imemufiol/ole de lu Croix-Rouge. 1953. (hereinaflcr refcrred 10 as Wilhelm) p. 682.
9) Doehring. Karl. «Desert cr!;» in: I:.ilcyclopedia of Public II//erna/iollill LuI!'. InstalmclH 3.
Amsterdam. 1982 (hereinaflcr referred ro as 1J0ehring. J)eserfers). p. 154.
principles and objectives and by analysing State praetiee, can a solution be faund for deserlers.
3. General scope
Before dealing with the definilion of a deserter, it would be appropriate la mention briefly sorne aspects of the problem whieh are beyond the seope of this study.
Except in situations of armed conflict, deserters are not covered by International Humanitarian Law, sinee it is applicable only in armed confliets.
They may, however, be protected by Human Rights Law, or even Refugee Law if they are entitled ta refugee status (10).
ln armed conflÎcts, deserters who stay in a terrilory controlled by their Qwn armed forces - the armed forces from whieh they deserted - do not belong ta the traditional categories of «proteeted persans» ; they merely benefit from the fundamental guarantes set Forth in Art. 75 of Protocall, provided they deserted for reasons related ta the armed confliet prevailing at the time.
Jn non-international armed confliets, deserters are protected by International Humanitarian Law, albeit in the same \Vay as any other person who does nottake - or no longer takes - an active part in the hostilities. Un der the terms of International Humanitarian Law, lhey are entitled to the same protection as other combatants caplured in the course of an internai caDfliet.
Actually, the legal concept of desertion is in itself ill-suited ta internai conflicts. Neither members of the governmental armed forces who defect ta the insurgent forces, nor rnembers of the insurgent forces who defeet to the gavernmental forces can be ealled deserters. They are rather people who have made up their mind with respect la the internai con flic!. Althaugh they are often received with open arms by the forces ta which they defect, International Humanitarian Law does not prohibit these forces From sentencing them solely because, prior to «deserting», they fought on the «wrong» side.
The only provisions appljeable ta these «deserters» are the fundamental guarantees laid down in Art. 3 cam mon ta the four Geneva Conventions of 1949 and those of Protoeol Il, whell the latter is in force.
Thus, the present paper wi\1 deal solely with the deserters who, in an international armed conflict, are in the hands of a Party olher than the one tbey were supposed to serve.
Il. DEFINITION
Before atlemptmg ta find solutions, we must agree on a definitian of the term «deserter».
10) Deseners are no! necessarily cllIitled to rcfugee stalU .... cr. chapter III. 1,8, e.
1. An inapposite notion: the concept of «desel'tion» under municipallaw.
Most national military codes give a detailed definition of deserters1 to be able ta punish them. But these definitions are not apposite in International H urnanitarian Law. II is indeed hardly conceivable that municipal law, which varies From one coun try ta another, should give a definition valid in international Humanitarian Law. But more important yet is the fact that in the various military codes, the concept of desertion is often very broad. ln many countries, a large number of breaches of the military code of conduct constitute acts of desertion. For instance, the United States decided to regard as deserters the American soldiers interned in Korea who «converted to Communism» and refused to be repatriated "'1, and, during the Second World War, the Soviet Union regarded as a deserter any Red Army officer taken prisoner by the Germans (12).
Such definitions are guided by military discipline and not by the victims' interest and, sbould they be taken over by International Humanitarian Law, they would divest prisoner-of-war status of any meaning whatsoever.
2. Suggested definition adapted to the requirements of international humanitarian law.
For the application of lnternational Humanitarian Law, we suggest the following definition of a deserter who is in the hands of an adverse or neutral Power:
A deserter is a member of the armed forces who terminates individually and unilaterally his military service with the intention of escaping his military obligations. He acts upon his intent to sever his allegiance to the Power he was serving either by abandoning his forces to go to neutral or enemy-controlled territory or, in a combat situation, by abstaining From fighting immediately prior to falling into the power of the enemy and seizing the first opportunity to confirm to the Detaining Power his wilHngness to sever his alJegiance to the Power on which he depends.
3. Tbe various elements of the definition A. The lIon-controversial elements
Both in the Iiterature and in cornmon parlance, the term «deserter» is used
Il) Flory. RCD/P, p. 60.
12) Shields Delessert, Christiane. Re/e(fse (lnd RefJalrÎalÎoll of PrÎsollel'S of Wor af the end of actÎ,'/!
flOsti!itÎes, Ziirich, 1977 (hereinafler referred to as Shields Dele,~serl), p. 146 and
Carr-Gregg, Charlotte. l!No deviance by Convention, prison ers of war as heroes 01' villClins,), in:
Hill, Mast, Howman, C'arr-Gregg. Shades of DeviaI/ce. Palmerston Nonh (N.Z,), 1983, p. 54-56.
lO describe a wide variety of soldiers and other persans with military obligations.
The first part of our definition nonetheless corresponds lO the following generaUy accepted notions:
«A deserter is a member of the armed forces who terminates unilaterally his military service \Vith the intention to renege on his military obligations»(lJ), B. The additional elements we suggest
Ta distinguish deserters from other combatants who have fallen into the power of the adverse party, the definition requires additional elements which must be as objective and easily verifiable as possible:
a) implementa/ion of the in/ent to sever allegiance
The difference between a deserter and other captured combatams is his intent ta sever his allegiance ta the Power on which he depends
'''J.
Yet the intent as such does not suffice: if must be acled upon. Thus, OUf criterion is not merely subjective, for il requires a combinalion of bath the iutent and a voluntary act consistent with th al intent.aa) Consequently, a soldier who surrenders without a fight may not automaticaUy be c1assified as a deserter. He expresses the wish ta stop fighting, but not necessarily the intent to sever allegiance wilh the country he is serving.
Any combatant who wants the enemy ta cease committing belligerent acts against him has no choice but ta show somehow that he no tonger wishes ta fight - unless of course he is wounded and has lost consciousness. Obviously, il is not for tnternational Humanitarian Law ta decide whether the soldier fails in his dut y or whether his surrender is justified under the circumtances, Thus, a priori, a so/die,. who for any reason sU/Tenders is nOl necessarily a deserler. He is a prisoner of war. Under Art. 4 of the Third Convention, .urrender does not deprive a combatant of prisoner-of-war status (lS).
bb) Besides, the fact that ta be a desener a combatant must ael upon his intent ta sever his allegiance means that a combatant who defends himself beIore being captured cannot be considered a deserter, irrespective of the assertions he may make afterwards.
b) Tlle point in lime wllen the intenl to sever allegiance must be expressed As a rule, a deserter voluntarily abandons his army and his act of desertion is absolutely obvious. A combatant who wishes ta implement his decision ta desert at the height of a battle is in a trickier situation, for a captured combatant is a prisoner of war and retains thal stalus until his release and repatriation, by
13) Cr. Dochring, Deserters, p. 152.
14) Wilhelm, p. 683.
15) Pictet. Jean. ed. The Gel/ell(l COI/ventions of Il August /949. ('ollllllellfary. Vot. III. Geneva Convention rcl<uÎve to the Trcaimeni of Pri!oioners of Wnr. ICRe. (icneva. 1960 (hereinafter referred
10 as COII/mell{my, Third COf/velltion), p. 50.
virtue of Art. 5 (1) of the Third Convention which stipulates that «the Convention shall apply to the persons referred to in Art. 4 from the time tbey fall inta the power of the enemy and uotil their final release and repatriation» and of Art. 7 of tbe Third Convention which lays down the principle of non- renunciation of the rights of prisoners of war. Thus, from a purely logical point of view, only someone who stopped fighting before falling into the power of the eoemy can be deprived of prisoner-of-war status. ln theory, a deserter should therefore make himself known as such at the time of falling into the power of the enemy(16J, .
In practice, in particular in a combat situation, the distinction between a combatant who surrenders and a real deserter may be difficult ta draw. Art. 5 (2) of the Third Convention even stipulates that any member of tbe armed forces who Falls into the power of an adverse Party - i.e. including deserters - shall be presumed to be a prisoner of war (17).
Thus, il is often only al a laler stage, namely during his first questioning, that a deserter can identify himself as sllch (18) and be granted the appropriate status. But if he fails ta do sa at that first opportunity, a captured combatant cannot suhsequently be regarded. as a deserter, since a prisoner of war cannot have his status changed, whatever his wishes or assertions (191,
Consequently, it 1S Dot possible to become a deserter while in capUvity (20).
This is in keeping with the principle that prisoner-of-war status is inalienable, and with the humanitarian desire to reduce the risk of Detaining Powers trying to indocrinate and manipulate prisoners of war during captivity.
State practice in the Korean and Vietnam wars was not always in conformity with that rule: the parties ta these conflicts c1aimed they could exempt from prisoner-of-war status persans who had been c1assified as prisoners of war and who were subsequently willing ta change their status (21).
16) Ha.~ellclever, Wolfgang. FreilusslilIg und HeimschuffulIg der Kriegsge/al/genell !Jei Beendigllng der Feindseligkeiren. Bad Codesbcrg, 1956 (hereinarter referrcd 10 as Hascnclcvcr), p. 155. and Wilhelm p. 683.
17) Wilhelm, p. 683; Hasenclever, p. 155; also see Art. 45 (1) of Prolocol 1.
18) Rosas. Allan. The Legal S!mlls of PriSaI/ers oJ Wat, Helsinki, 1976 (hercinafter referred 10 as Rosas). p. 391: Hasenclever, p. 155; Wilhelm, p. 683.
19) Wilhelm. p. 536-543; Commelllary, Third COl/vention. p. 89.
20) Draper, G.I.". D. The Red Cross Con veillions. London. 1958 (hercinaflcr referred 10 as Draper, The [(ed Cross Caf/ven/ions), p. 53/54; Wilhelm, p. 683/684; Commen/m)' Third Convention, p.
549; Hasenclevcr, p. 155/156; NOle 1 ta Arl. 126 of Ihe Law of War on Land (United Kingdom). in:
Levie, Documents. p. 697. Contra: flory, William E.S. Prisol1ers of War, Wa:-;hinglon, 1942 (hereinafter referred ta as Flory, POW), p. 145, and Schapiro, L.B. {(Rcpalriation of Deserters)), 29 British Yearbook of International Lt,ll', 1952 (hereinafter referred!O as Schapiro). p. 3tO-324. who base their vicw on national military law. Also of a differcnt opinion: Esgain. Albert J./Soll".
\Valdemar A. «The 1949 Gcneva Convention relative ta the Ircatmenl of prisoners or war: ilS principles, innovations and deficîencies)) in: North Carolinll LaI\' Rel1iell', Vol. 41. No J. 1963 (hereinafler refcrrcd ta as Esgain/Solf), p. 590, nOIe 205, and Doehring. Deserte",~', p. 152.
21) Rosas, p. 390.
However, as regards cllstomary law, «too much significance should not be given to the practice adopted in the Korean and Vietnam wars, in view of the strong internai aspects involved in these conOicts» (22).
c) The need to express personal/y the in/ent 10 sever allegiance
Only an individual can express the intent to sever his allegiance to the Power
DO which he depends. An entire unit cannot possibly be considered a «unit of deserters» unless each and every individual has been given the opportunity ta express personally his iotent ta sever his allegiance. An individual taking part in a mass capitulation is not necessarily a deserter - an assertion which concurs with the intenl of lhe authors of the Third Convention (23) and reduces the risk of the provisions concerning prisoner~of-war status being reodered void by a cterogation for deserters l24l.
4. Must a distiuction be drawn between deserters and derectors?
Before we deal with the question as to who, in practice, is deemed to be a deserter under the terms of our definition. we must con si der whether a distinction must be made between deserters and defectors. Sorne authors distinguish between deserters in the strict sense - i.e. persons who sim ply want to escape military service and the dangers of the battlefield - and defectors who are motivated by ideological considerations (25l.
However, opinions diverge as to the definition or «derector». For sorne praponents of the distinction, the term «defectof» denotes a person who wants ta join the eoemy armed forces (26), aod for others, it includes persons who seek refuge with the eDemy for ideological reasons, bUl without necessarily intending to enUst in the enemy armed forces (27).
As for the effects of thal distinction, there is no consensus among its proponents. Sa me state that deserters must be granted prisoner-of-war status, but that (dt appears to be a generalized rule that a Detaining Power is not bound
22) Rosa.!., p. 392.
23) Commelltary. Third COllveflfion, p. 50; (sce also infra III, LA b).
24) lIasenclever, p. 155.
25) Greenspan. Morris. The Modem LoI\' of Lal1d lVarfare, Berkeley, 1959 (hercinaftcr referrcd 10 as Grccnspan), p. 99; Rosas, p. 388: Esgain/Solf, p. 555: Levie. Howard. Prisoners of WlIr in international armed cOl/flict, International I.aw Studies. U.S. Naval \Var Collegc. Vol. 59, SI. Louis, 1977 (hereinarter referred 10 as Levie, POI·V). p. 76/77. The distinction is probably also inrerred in Art. 126 of the l.aw of War on Land (United Kingdom) of 1958, in: Levie. Doeumel/ls, p. 697.
Draper, The Red Cross Con veillions, p. 53/54. only mentions the. term ((defcClOrS)) which would seem to den ote ail deserters.
26) Esgain/Solf, p. 555, and probably I.evie, POW. p. 77.
27) Rosas. p. 388.
to classify defectors as prison ers of wan> (28). Others, on the other hand, are of the opinion that the distinction bas no bearing on the status and that both deserters and defectors are enûtled to prisoner-of-war stalus (29).
As far as lnternational Humanitarian Law is concerned, the distinction has a significant drawback, in that il resls on a purely subjective factor: the reasons for desertion. It is difficult enough for a judge at national level to assess the subjective factors which must be taken into consideration in the qualification of an orfence, and such assessmeots would be extremely hazardous, if IlOl
impossible, in armed confliet situations, for the subjective factors may be influenced by the parties and neither the Detaining Power nor the Protecting Power have the means, the dispassionateness or the lime to single out and screen these subjective factors. The distinction should therefore be dropped.
The term «defector» may nonetheless be used to denote a special kind of deserter (within the meaning of this study): a defector is a deserte~ who voluntarily abandons tlis forces for the purpose of bearing arms on behalf of the eoemy.
S. Persons qualit'ying as deserters within the meaning of our definition
11 follows from the criteria discussed above that under International Humanitarian Law a member of the armed forces who has fallen into the power of the enemy may be considered a deserter only if:
a) he abandons his forces, secretly goes over to oeulral or eoemy territory, and states at the very first opportunity his intent to sever his former alIegiance(JO);
or if
b) he falls into the hands of the enemy under ambiguous circumstances, i.e.
not in a combat situation (for instance a spontaneous mass surrender which has not been caused by an enemy altack), and who states, at the very first opportunity 1 his intent ta sever his former aUegiance (li); or if
c) he falls into the power of the enemy in a combat situation, yet surrenders without putting up a fight and states at the very first opportunity his intent to sever bis former allegiance(J2).
However, a combatant who has put up a fight at the time of capture should not be regarded as a deserter, whatever he may assert later on.
28) Rosas, p. 389-391; nOie 1 10 Arl. 126 or Law of War on I.and (United Kingdom), in: Levie, Documents. p. 697.
29) Esgain/Solf, p, 555-563; Levie, POW, p. 77-80.
30) Also see HasencJcvcr. p. 155.
31) Also sec Commentary, Third COllvel1llol/. p. 549.
32) Also see Rosas, p. 391; Commelllory. T/!ird COl/vention, p. 549.
6. Ways of stating the intent to sever allegiance
The intent to sever allegiance - and we emphasize once again that such intent must oot merely exist, but must a1so be acted upon - cao be expressed in the following terms:
a) the presumed prisoner of war states Ihat he wants ta enlist in the armed forces of the Detaining Power; or
b) he states that he sought refuge \Vith the Detaining Power ta escape from his Qwn army; or
c) he states that he no longer wants ta have anything ta do with rhe Power on which he hitherto depended and that he refuses ta be interned with other members of the that Power's armed forces.
DI. THE POSITION OF DESERTERS
UNDER INTERNATIONAL HUMANITARIAN LAW
Having defined deserters, we shall DOW examine the provisions of [nternational Humanitarian Law applicable ta them. First, we shall analyse, in general terms, the status and treatmentto be granted deserters in the power of the enemy or of a neutral State. We shall then broach two specifie issues: the notification of the persan al data of deserters in the power of the enemy ta the Power on which they depend, and the repatriation of deserters.
As Qur definition does not include sorne categories of combatants onen referred ta as deserters, we shall also examine the provisions applicable ta those categories.
1. Deserters who have (allen into the power of the adverse Party A. Status
a) The literature
ln the Iiterature, the status and the treatment ta which deserters are entitlcd is a hightly controversial issue. Some authors contend that deserters are entitled ta prisoner-of-war status (]J), while the majorilY of th cm state that they are not 134).
The Commentary on the Tbird Convention specifies that: «Although many cOllotdes, for instance Great Brilain, treated the latter as prisoners of war, this
33) Levie, PO IV, p. 77-79; Shields Delessert, p. 191/192: rrobably Rousseau. Charles. Le droit de ...
cof/flils armés, Paris, 1983. p. 88.
34) Draper. G.I.A.D. ((The Gcneva Conventions of 1949,·, Collected CourseS of the Ac:ademy of International LolI', (114), 1965, 1 (hcrcinafter referred 10 a~ Draper. The Gellel'o COf/velllions), p.
110. and Draper. The Red Cross COI/ven/ions. p. 53/54: Wilhelm. p. 681-683).
does nol mean lhat they are entitled ta that status»
m,.
This implies tbat although there is an established practice by sorne States ta tIcat deserters as prisoners oi war (J6l, there is no obligation. under cuslomary law, to do 50. Sorne authors tao are proponents of this opinion (37), while athers contend that by virtlle of State practice, deserters are entitled to be treated as prison ers of war (l8), at Icast if theyaIe interned (39).
b) Desel'ters are not prisoneJ'S of wal'
As a rule, the deserters defined above are in uniform wh en they fall inta the power of the cnemy and will continue to be considered - al least by the Power on which they depend - as members oF its armed forces.
Thus al firsl glance, it would appear compulsory, From a legal point of view, ta grant them prisoner-oF-war status. Under Art. 4 A(J) of tbe Third Convention, members of the armed forces who have fallen inta the power of the cnemy are to be considered and treated as prisoners of war 1 and Articles 5 and 7 specify that they will retain that status until their final release and repatriation and cannot renounce it.
Sorne aUlhors, however, argue lhat in Arl. 4 (A), lhe expression ,<Jallen into the power of the enemy» clearly shows that it concerns combatants who pass into enemy hands not of their own Free will but by a force beyond their control
'40'.
Those who deser! their own forces and give themselves up ta lbe enemy do not, LO
tbeir mind, qualiry as prisoners of war witbin the meaning of Art. 4 (A) and are therefore not entitled to the rights conferred by the Third Convention Pl!. But this
35) COl11l11entm)', Third COl/ven/ioll, p. 549.
36) Cr. for instance: (Le rêglemenl français du 21 mars 1893 ~111" les prisonniers de guelTe» in:
Romberg. Edouard. Des belligérants et des priSONniers de guerre. Bruxelles/Paris, 1894. and Br.
M.M.L.. chal'. XIV. par. 56 (e) quOted hy Crreenspan. p. 99. nOIe 17.
37) Hasenclcver. p. 154; Draper, The Gel1el'o COllvemiolls. p. 110; al It'as! with respect tn del"eetors:
Rosas, p. 389/390. and nOIe 1 10 An. 126 of the l.aw of War on Land (United Kingdom) in: Levie.
Doc//mellfs, p. 697.
38) Castren. Erik. The presellf lall' of !l'ar (lf/d lIelltraUty, Helsinki. 1954. p. 154; Schapiro. p. 323:
VCITi. Pietro. Diziollwio di diritro illlemll?ionale dei conftitti armati, Roma. 1984. p. ]3; al leasl for desertcrs: Greespan. p. 99. One could also contend that although descrters are not elllitied ta prisoner-of-war status. they are entitled 10 the sa me trcatment as prison crs of war. This seems ra have been lhe view cLLslomarily adoptcd by the ICRe \\hich requested that the treatment 01" deserters be simil<lr ta that of prison crs of war (excepl with respect to repatriation). The reaSOn for this is thal lhe ICRe tould not leave desertcrs in a «Iegal vacuum). Le. withollt lcgal protection. Since any interned cnemy alien who is not a prisoner or war qualifies as an interned civilian (sillet the Fourth Geneva Convention of 1949 tame into force). Ihe ICRC's con cern is now OUldated.
39) RO.~as. p. 391 and Flory. POW. p. 30/31 (but wc mllst poin! OuI Ihat this work was written in 1942. whcn the 1929 Conventions \Vere in force and civilian-Înlcrnee stalus did not yet cxist).
40) Wilhelm. p. 682.
41) Wilhelm. p. 682; nOte 1 to Art. 126 of the Law 01" War on I.and (United Kingdotll) in: l.evie.
Documents, p. 697; Draper. The Red Cross COf/venlions. p. 53.
argument is too formalistic; it excludes too many combatants From prisoner-of- war slaLus and does nol reflect Lhe intent of the 1949 Diplomatie Conference (."
which replaced the words «captured by lhe enemy» in Art. 1 of lhe 1929 Convention relative ta the Trealment of Prison ers of War by «persans who have fallen into lhe power of the enemy» ta increase the scope of the Third Convention of 1949 and to include, inter alia, «soldiers who became prison ers without fighting, for example following a surrenden, and ta prevenL Detaining Powers From refusing ta grant prisaner-af-war status ta «surrendered enemy personnel>, - as had happened during the Second World War ("'.
On the oLher hand, the «travaux préparatoires" of the Third Convention do not renect any specific intent ta include deserters in lhe category of persans entitled ta prisoner-of-war status. The Third Convention leaves the question open ("'. Thus, it did not change in any \Vay lhe customary practiee whereby il was left to the discretian of states ta grant or den y prisaner-of-war status ta deserters (<15) and cantains no obligatian ta grant them such status (46).
Ta fail ta give prisoner-of-war status ta deserters on the grounds thal they want ta sever their allegiance is not counter la Art. 7 of the Third Convention whlch prohibits even voluntary cbanges in the status of prisoners of war "": the persans coneerned were already deserters when they fell into the power of lhe enemy anel th us never had prisoner-of-war status.
No express rule of internationallaw exists prescribing that deserters musl be given prisaner-af-war slatus. Furthermore, neither the spirit nor the objective of International Humanitarian Law in general and of the Third Convention in particular advocate prisoner-of-war status for deserters.
Deserters would in ract be very exceptional prisaners af war, since they lack an essential attribute which influenced the entire concept and conLent of Lhe Third Convention: unlike «standard» prisoners of war 1 they are not «une fraction cie la puissance militaire de l'ennemi» (a part of the enemy's military
42) Commellfary. ThinI COI1Venriofl. p. 50; Esgain/Solr. p. 558/559: Levie, POW. p. 78;
lIasenclever. p. 153.
43) Commel1rary, Thini Convell/ioll. p. 50; Final Record of lhe Diplomatie Conference of Geneva of 1949, Federal Polilieal Depnnmem. 1949 (hereinafler rel"erred to ac; Final Record), Vol. II. seclion A.
p.237.
44) Esgain/Solr, p. 558-562: DoC'hring. Deserters, p. 154: Shields Delesscn, p. 188; Hascnclever, p.
154; Schapiro, p. 322/323: Garcia-Mora, Manuel R. IlIlematÎollal Law and Asylum as a HlIf1Iall Right. Washington, 1956 (hereinafler rerence! 10 as Garda-Mora), p. 103/104.
45) Hasenclever, p. 153; Garda·Mora, p. 104-106.
46) Commenlary, Third COl/véntioll. p. 549: Shields Delesserl, p. 189, note 74; I-Iasenclever. p. 15-l;
probably Wilhelm. p. 68\ /682: a delailed analysis of Stale practicc (sec: Schapiro. p. 310-322) shows Ihat deseners ",cre Ilot ITealed as prÎsoncrs or \Var. al leasl at Ihe lime of rcpalriation.
47) Haxler. R.R. «Asylum 10 Prisoners of War», British Yeorbook of Internatiomlt LaI!'. 1952 (hercinaflcr referred to as Baxter). p. 497; Hsscnclever. p. 154; coO(ra: Levie. POW. p. 79.
strength) t'''. Hence the specific justification for interning prisoners of war, namely ta prevem them from continu;ng or resuming the fight, does nol apply in the case of deserters.
Furthermore, lhe whole purpose of the Third Convention is ta protect soldiers in the enemy's power and ensure due regard for their honour (Art. 14) and their ranks and badges (Art. 40, 43-45, 49). They are soldiers subject ta military law (Art. 82-88) and above ail loyal ta the Power on which they depend (Art. 87, 91, 107)(<9l. However deserters do nOl want ta be soldiers (at least not in the forces of the Power on which they depend) and are no longer in the hands of that Power whicb could constrain them ta serve in its army. Usually, they will not want their names and personal data ta be notified ta the Power on wh;ch they depend and at·any rate will have no desire ta be repalriated. They may even want ta serve in the enemy armed forces. But if they are prisoners of war, their Detaining Power cannat fulfil these wishes withoul committing a breach of tbe Third Convention (SOl. Thus, many provisions of lhe Third Convention - e.g.
those relating to the Protecting Power wlüch «represents» the Power on wbich a prisoner of war depends - presume a priori that there is a bond of allegiance between the prisoner of war and the Power on which he depends (Sil.
It is difficult ta see how they could apply to deserters who wam ta sever that bond.
Although International Humanüarian Law does not put tbe Detaining Power under any obligation ta grant deserters prisoner-of-war status, it would be erroneous ta assert that the Detaining Power is not entilled ta do sa. The option to grant deserters prisoner-of-war slatus may be regarded as a custornary right (52), even thougb il should not be encouraged owing, as mentioned above, to the inappropriateness of such status.
c) Desel'lers are protected civilians
International Humanitarian Law protects ail persans in the power of the adverse Party. If deserters do not have prisoner-of-war status, they are protected by the Fourth Convention relative ta the Proteclion of Civilian Persans in Time of War: as stated in Art. 4, the Fourth Convention protects ail «persans who, at a given moment and in any manner whatsoever» find themselves, in case of a connict, in the power of an adverse Party and are not protected by another Convention. Thus, deserters are protected civilians tSl) and as such may be visited
4R) F)ory. I/GDIP. p. 56.
49) Wilhelm. p. 682.
50) By virtuc of Art. 7 of the Thirel Convention, prisoners of war cannOI renouncc lheir righls.
5 [) Wilhelm, p. 682.
52) Shields [)elessert. p. IR9. nOle 74; COII/mentar)'. Third COtlllell/;oll, p. 549.
53) The fo1Jowing aulhùrs exprL'~'ily agree that deserters are civilians: E.'igain/Solf. p. :556; Baxter. p.
496/497.
by delegates of the Protecting Power and of the ICRC who can check, in an interview without wilnesses, whether lhey really are deserters (Sol).
Another question which may be raised is whether desertcrs are entitled to refugee status. We shall deal with it further on.
To preclude any misunderstanding, we must stress again that deserters take on civilian status only when they sever their allegiance. Up to that point in time, they are combatants entitled to commit belligerent acts which as such may not be held against them later on. Besides, as previously mentioned, combatants who commit belligerent acts at the time of falling into the power of the enemy are not deserters, bUl prisoners of \Var 1 irrespectÎve of Ihcir attitude arler their capture.
B. Treatmenl 10 be granled 10 deserlers
When a deserter falls into the power of the enemy in a combat situation, it may be difficult 10 distinguish him from other captured combatants. Under those circumstances, should any doubt arise as to his status, he must be treated as a prisoner of war until 5uch lime as his real S131US a's a deserter, i.e. a civilian, has been determined by a competent tribunal"». Once his staLUs has been determined or if there has never been any doubt about it, a deserter is a protected civilian within the meaning of International Humanilarian Law and as such, he is enùtled to the following treatment:
a) He may be interned if the security of the Detaining Power makes it absolutely necessary ,,6) (which is oflen the case, since it is difficult, al least at the outset, to draw the distinction between a genuine deserter and a spy). In that case, he will be a civilian internee whose status is governed by the regulations set forth in Art. 79-135 of the Fourth Convention and reflects his position much more accurately than prisoncr-of-war status. Although the lreatment prescribed for civilian internees is to a large extent modelled on that of prisoners of war, it discards the rules rneant specificaUy for soldiers. Besides, granting such status would be a fair reflection of the prevailing practice, since deserters have usually been accorded trealment similar to thal of prisoners of war.
b) Coercive enlistmelll of enemy civilians in the armed forces of the Detaining Power is forbidden
"7).
On the other hand, it is a generally accepted rule lhat the Detaining Power may accept a deserter's valun/ory offer to enlis! in its armed forces (>8). This rule is particularly relevant for defectors who wish to54) /\rt. 143 (5) of the Fourth Convention. 55) Art. 5 (2) of the Third Convention.
56) An. 42 (1) of the "'ourlh Convention.
57) Art. 23 orthe 1907 Hague Convemion No. IV; Art. 147 and 400fthe Fourth (icneva Convention.
58) Ha'icnclever. p. 155.
bear arms on behalf of the enemy and tallies with the established. practiee of States ta accept the services of defectors (lO). If the Detaining Power utilizes the services of a defector who really does want ta enlist, sueh defector is thenceforth protected by International Humanitarian Law only as a combatant. Should he subsequently fall into the power of the armed forces from which he has defected, he may be tried for desertion and treason. lt is widely rnaintained that in that case. he is not even entitIed to prisoner-of-war status (60). Yet it may al50 be argued that he falls into the categories listed in Art. 4 a f the Third Convention and must therefore be granted prisoner-of-war status (ftl), which would not exempt
mm
From being tried for desertion, but would secure for him (due process of law» in conformity with the judicial guarantees set forth in the Third Convention.c) The Detaining Power may also choose ta grant their freedom ta deserters, as indeed ta any civilian nationals of the adverse party who are in its territory. ln that case, such deserters may:
- leave the territ ory of the «Detaining •• Power and go ta a third country (if they find one willing ta admit them); or
- stay in the territory of the «(Detaining Powen., with the following alternative: they do not apply for refugee status; in this case they are entitled ta benefit by the provisions of Art. 39 (means of existence) and Art. 40 (employment) of the Fourth Geneva Convention; they apply for refugee slatus there.
d) Since deserters do not, in fact, enjoy the protection of any government, they are refugees in the meaning of Art. 44 of the Fourth Convention. By virtue of this article they rnay not be treated as enerny aliens exclusively on the basis of their nationality de jure of an enemy State. But if the Detaining Power has other reasons ta regard them as enerny aliens, they will enjoy the protection of Arts.
35,46 and 143 of the Fourth Convention.
e) The facl that deserters are refugees within the meaning oF Art. 44 of the Fourth Convention does not necessarily imply that they are entitled ta refugee status as provided for in instruments of inlernationallaw 5uch as the Convention relating ta the Status of Refugees of 28 July 1951 (62) and the Protocol relating ta the Status of Refugees of 31 January 1967 (63'.
59) Shields Delessert, p. 189. note 74; Doehring, Deserters. p. 153; Hingorani. R.C. PrisOllers of IVàr. 2nd ed .. New Delhi. 1982 (hereinafter rererrcd ta as Hingorani, Prisol/ers of War), p. 87.
60) 0pPcllheim's International Lalll, vol. 2, 7 cd., by l.auterpachl. I.ondon, 1952 (hereinafler referrcd la a .. OPPcllheim/Lautcrpaclll). p. 268; Levie, PO IV, p. ~I; Flory, POW, p. 29/30;
Hingorani. R.C. «Who are the Prisoners of War?)). in: The AlIslral/{fI/ Yem·book of IlIfenwrÎonal Law, Vol. 9, Canberra. 1985 (hcreinaflcr referred as Hingorani. Who arc the Pri. .. oncrs of War?);
Hingorani, Prisol/ers of Waf, p. 31/32; Art. 103 01" the-l.aw of War on 1 and (Unitcd Kingdom) in:
Levie. Documellfs, p. 696.
61) Wilhelm. p. 685-688.
62) UNTS No. 2545. Vol. )89. p. 137.
63) UNTS No. 8791. Yol. 606. p. 267.
The definilion of the term refugee given in those instruments is in faet more limited in scope ''') than that given in Art. 44 of the Fourth Convention: under International Refugee Law, deserters are not refugees merely because they fear, in their own country, prosecution and punjshment for desertion; they must show that they would suffer disproportionately severe punishment on accoun! of discriminatory criteria. Refugee Law does not regard punishment for desertion as persecution, however genuine Ihe underlying conviction which led ta desertion, unless the military action in whieh the deserter refuses to participate is condemned by the international community as contrary to basic rules of human conduct.
1
r
a Power induces enemy soldiers to desert, one may contend that it is under an obligation ta grant them asylum by virtue of the principle of estoppel(6" -
ageneral principle of international law (66).
Final/y, there exists no international prohibition to grant asylum to deserters, irrespective of the considerations whicb prompted them to desert (67).
2) Slalus and Ireatment of prisoners of war who want to sever their al/egianee whilst in eaplivily.
Prisoners of war who, whilst in captÎvity, make known their desire ta sever their al/egiance to the Power on which they depend are often regardecl as deserters by that Power and sometimes also by the Detaining Power. Yet they do not faU within our definition of a deserter. By virtue of the Third Convention, they are prisoners of war (Art. 4); they cannot renounce that status (Art. 7), but retain il uDtil the end of hostilities (Art. 5)(68), even if they are not interned. They are entitled to the same treatment as the other prisoners of war and cannol renounce the rights secured to them by the Third Convention. This principle is extremely important in that il rem oves a possible additional incentive for the Detaining Power to indoeu-inate prisoners of war (69). Even if they are volunteers,
(4) Pictet. Jean. ed. The GeJ/eva Convenriolls 0112 August 1949. COlIImellUlry. Vol. IV. Gcncva Convention relative to the proteçlion or Civilian Persons in Timc of War. ICRe, Geneva. 1958 (hereinafter rcfcrrcd to as Commelltary, The FOt/rlh Convention). p. 264,
65) C;arcia~Mora, p. I06~I08; probably: Shields Delesscn. p. 97; Schapiro. p. 323/324.
66) On the concept of eSloppel in international law sec: Martin. AllIoine. L'es/oppel en droil intemationlll public. Paris. 1979. and Müller. Jôrg Paul. Vertrafl(!IIssc!IIIIZ im V6lkerrecht. Oern.
1971.
67) Doehring. Deserlers. p. 153; Hingorani. PrÎsoners 01 War, p. 185/186: even the USSR admilled this in il!. 1945 Protocol with Switzerland (sec inrra, nOie 86).
68) Levie. POW, p. 77178: Draper. Thl! Red Cross Conventiol/s. p. 54; only in re~pect of desertcrs in a strict sense: Rosas. p. 391/392.
69) A Delaining Power has litlle incentive 10 induce prisoners of \Var 10 sever their allcgiance if arlerwards. il cannot use lhcir services and musi go on affording them prisoner-of-war slalllS.
