Lieber Studies POW Volume Symposium – Parole: The Past, Present, and Future

Editor’s note: The following post highlights a chapter of the Lieber Studies volume Prisoners of War in Contemporary Conflict, which will be published 3 March 2023. For a general introduction to this volume, see Professor Mike Schmitt and Major Christopher J. Koschnitzky’s introductory post.

Article 21 is, arguably, the pivotal provision of Geneva Convention III. It provides explicit legal authority for States to detain captured enemy personnel as prisoners of war (POWs). However, despite the centrality of this authorization to the entire legal basis of the Convention, the bulk of Article 21 focuses instead on affirming that “[p]risoners of war may be partially or wholly released on parole or promise.”

Under the international law of armed conflict, parole is an agreement on the part of the captive to refrain from participating in hostilities in return for limited or unrestricted release from POW captivity. Parole – from the French “word” or “promise,” as in “to give one’s word” – is a concept grounded in medieval notions of chivalry and honor, underpinned by both pragmatic and humanitarian objectives. Central to the notion of parole is that the paroled prisoner is granted liberty so long as they vow not to take up arms against their captor, or to attempt escape until an exchange of prisoners of war is completed.

Past

The usual practice in bygone eras was that persons captured in war were enslaved or killed. However, several developments during the Middle Ages changed this practice, including the 1179 Third Lateran Council, which prohibited on the enslavement of Christian POWs, and the emergence of the code of chivalry. Chivalry was, essentially, a military code of conduct adhered to by knights, grounded in the idea that knights or other persons of the same rank and caste, even of opposing forces, were deserving of honorable treatment in warfare – namely, capture, rather than execution.

However, it was not just the notion of “honor” that saved captives from execution – as members of noble, land-owning estates, knights were wealthy. Keeping them as captives meant that they could be ransomed for considerable sums of money.

The practice of ransoming captives continued for some time until changes in warfare after the Middle Ages which transformed war from being an endeavor fought by private armies personally loyal to a prince, to endeavors fought by persons answering a call of duty from the State. As Rousseau argued, “war is a relation not between man and man but between state and state, and individuals are enemies only accidentally, not as men nor even as citizens but as soldiers; not as belonging to their country but as defenders of.”  Therefore, if soldiers were not the personal enemy of the capturing State, they could not be the personal spoils of war of the enemy either and thus should not be ransomed.

By the 17th century, parole was a recognized part of international law, and by the 18th and 19th centuries, the practice of parole was at its zenith, with officers and enlisted regularly paroled during the American Revolution, the Napoleonic Wars, the War of 1812, and the Mexican War. However, it was the American Civil War that saw the most widespread use of a system of parole, through the Dix-Hill Cartel. Formally established in July of 1862, the Dix-Hill Cartel provided that all prisoners of war were to be discharged on parole ten days after their capture. While on parole, they were prohibited from serving in the armed forces, including in the role of “military police or constabulary force in any fort, garrison or field-work held by either of the respective parties, nor as guards of prisoners, depots or stores, nor to discharge any duty usually performed by soldiers,” until they were formally exchanged. Once parolees were formally exchanged, they were at liberty to rejoin the conflict.

Parole of prisoners of war was, fundamentally, pragmatic – as Stephen Neff puts it, “rationalism and calculation were the order of the day.” Parole freed up resources that would have otherwise been spent maintaining POWs in detention facilities, potentially for protracted periods of time. It also benefitted the side with fewer overall numbers of fighting-age men; returning such men to the ranks enabled belligerents to continue the conflict.

Despite the pragmatic benefits of parole, in practice parole regimes tended not to last long, with violations common. The Dix-Hill cartel lasted only ten months, and there were frequent violations of agreements not to return to the fight. By the time of the Russo-Japanese War of 1904, there were few instances of parole being offered or accepted. And by the outbreak of the First World War in 1914, the practice of parole had essentially fallen into desuetude. Likewise, only two instances of parole seem to have been recorded as occurring during the Second World War – with Italian POWs paroled by US forces in Sicily and US forces paroled by the Japanese in the Philippines.

Present

Given that the practice of parole had fallen out of practice by the time of the drafting of the Geneva Conventions, the question arises as to why it was included in the 1949 text at all. The obvious answer is that the Conventions were aiming to be as complete a set of laws as possible, with all available rights retained and expanded on for POWs – particularly any that had the kind of long history that parole did (having been included in the Lieber Code and the 1899 and 1907 Hague Conventions). Article 21, as adopted, generally repeats the law as outlined in the Hague Regulations, affirming that a POW can accept whole or partial parole, but that no POW may be compelled or coerced into accepting liberty on parole or promise. In exchange, the POW must abide by the laws and regulations of the State on which they depend – usually their State of nationality. What this means in practice is that a POW may not accept parole if their home State forbids use of parole, as in the case in the United States. Parole can also be sought for reasons of health or hygiene – i.e., to access specialist medical treatment.

Despite its firm place in the law of armed conflict, since the adoption of Article 21 there has been little in the way of State practice regarding parole. Is parole therefore just a quaint historic relic in the Conventions, much like the provision in Article 62 ensuring that, at a minimum, POWs undertaking employment shall be paid a fair working rate of … [no less] than one-fourth of one Swiss franc for a full working day’? Is there any future utility in Article 21’s parole provision?

Future

Arguably, parole may still serve some purpose, especially if one is mindful of the original reasons behind the adoption of parole in practice, that of pragmatism. Parole may be a way for detaining authorities to avoid the logistical and financial burden of having to maintain detention facilities for large numbers of detainees. Increasingly, State armed forces are becoming involved in more protracted armed conflicts – by granting parole to detainees captured during such protracted armed conflicts, parties to an armed conflict could minimize or avoid the costs involved with such protracted detention, as well as potentially circumvent concerns under international human rights law regarding indefinite detention.

As a matter of policy, the logic behind granting parole for any detainees remains valid.  As the ICRC has noted, release on parole “may offer an advantage to the Detaining Power, for example if it does not have the means to intern prisoners of war. This might be the case if it lacks the necessary space, facilities and provisions”– this logic is applicable for any detaining authority. Moreover, concerns about whether paroled detainees or POWs might rejoin the conflict could be potentially circumvented, or at least minimized, using curfew, electronic monitoring, regular reporting to authorities, and other control orders, like those imposed on certain domestic criminal law parolees.

Concluding Thoughts

As warfare continues to evolve and new technological developments emerge, it is a common refrain to bemoan the antiquated nature of some of the provisions of the law of armed conflict.  Parole provisions may seem to be just one of those antiquated notions. However, in the near 75 years since the adoption of the Geneva Conventions, the law of armed conflict has proven resilient and flexible, and capable of adapting to new situations (such as the work being undertaken in the meetings of State parties to the United Nations Convention on Certain Conventional Weapons regarding lethal autonomous weapons).  In situations of armed conflict, having more, rather than fewer, protections for persons hors de combat, is something to be encouraged.

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Emily Crawford is an Associate Professor at the University of Sydney Law School and a co-editor of the Journal of International Humanitarian Studies.

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