§ 113. Postliminium The word "postliminium" is derived from the Roman Law idea that a person who had been captured and afterwards returned within the boundaries of his own state was restored to all his former rights, for jus postliminium supposes that the captive has never been absent.1 The attempt to incorporate this fiction into international law has obscured the fact for which it stands. The fact is that the rights of an owner are suspended by hostile occupation or capture. These rights revive when the occupation or capture ceases to be effective. The consequences of acts of the enemy involving the capture while in the enemy's possession are not necessarily invalidated if these acts were within his competence by the laws recognized by civilized states. Thus taxes paid during a hostile occupation or penalties for crime imposed by the invader are held to discharge the obligation as if imposed by the regular authorities. When the restoration of the property or territory which has been in the captor's possession is accomplished by a party other than the owner, the service of restoration should receive proper acknowledgment as in other cases of service. If territory is restored through the coöperation of an ally, the conditions of the alliance will determine the obligation of the original possessor. Most states have definite rules as to the restoration of ships, as well as other property, and the granting of salvage. The United States provides that when any vessel or other property already captured shall be recaptured, the same not having been condemned as prize 1 Justinian, I., xii., 5. before recapture, the court shall award salvage according to the circumstances of the case. If the captured property belonged to the United States, salvage and expenses shall be paid from the treasury of the United States; if to persons under the protection of the United States, salvage and expenses shall be paid by them on restoration; if to a foreigner, restoration shall be made upon such terms as by the law of his country would be required of a citizen of the United States under like circumstances of recapture; but, if there be no law, it shall be restored upon the payment of such salvage and expenses as the court may order. But these rules are not to contravene any treaty. When the original crew of the vessel arise and take the vessel from their captors, it is called a rescue and the crew is not entitled to salvage. When an American ship, on a voyage to London in 1799, was captured by the French and afterward rescued by her crew, the British sailors working their passage to London in the ship were allowed salvage.2 While Prussia was in possession of a portion of France during the Franco-Prussian War of 1870, Prussia contracted with certain persons for a sale of a portion of the public forests in France. The purchasers paid for the privilege of felling the forests, but had not completed the cutting of the trees when the Prussian occupation ceased. The purchasers claimed that they had the right to complete their contract, but France maintained that her rights revived when the Prussian occupation ceased, and this position was accepted by 1 U. S. Rev. Sts., § 4652. 2 The "Two Friends," 1 C. Rob., 271. Prussia in an additional article to the treaty of peace of Dec. 11, 1871. § 114. Prisoners and their Treatment "A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field, or in the hospital, by individual surrender, or capitulation. Citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such." "All persons who are of particular and singular use and benefit to the hostile army or its government "1 are liable to capture. Levies en masse are now treated as public enemies. Within recent years persons who by reason of their trades or training may be of special use to the enemy are included among those liable to capture; as the personnel of captured merchantmen.2 It is now a fundamental principle of law that the treatment of a prisoner of war is not to be penal, unless the penalty is imposed for some act committed after his capture. A prisoner of war is subject to such restraint as is necessary for his safe custody. A prisoner of war may be killed while attempting to escape, but if recaptured no punishment other than such confinement as is necessary for his safe keeping is allowable. 1 Instr. U. S. Armies, 50; Appendix, p. 344, 345. 2 Appendix, pp. 403, 468. (a) The refusal of quarter to prisoners of war is not now allowed. Those who have violated the laws of war or the principles of humanity are liable to retaliation as a measure of protective retribution only. It "shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution." 1 (b) Internment. "Prisoners of war may be interned in a town, fortress, camp, or any other locality, and bound not to go beyond certain fixed lines; but they can only be confined as an indispensable measure of safety." 2 (c) Employment. "The state may utilize the labor of prisoners of war according to their rank and aptitude. Their tasks shall not be excessive and shall have nothing to do with the military operations. . . . The wages of the prisoners shall go towards improving their position, and the balance shall be paid them at the time of their release, after deducting the cost of their maintenance." 3 (d) The exchange of prisoners of war is purely a voluntary act on the part of the states at war. This takes place under an agreement called a "cartel." The exchange is usually rank for rank, number for number, value for value, though it is sometimes necessary to agree upon certain conventional values where those of the same rank are not among the captives, as in 1862, when the United States exchanged a captain in the army for six privates, etc. (e) Prisoners of war may be released on parole, which is a promise to do or to refrain from doing certain acts in consideration of the grant of freedom in 1 Instr. U. S. Armies, 28. See Appendix, p. 338. other respects. The punishment for breach of parole is death if the person is again captured.1 (f) The sick and wounded taken in the field become prisoners of war. Their treatment is now generally determined by the provisions of the Geneva Convention of 1864. This convention provides for the neutralizing and protection of hospitals, ambulances, and those engaged in the care of the sick and wounded, and for distinctive marks for this service, particularly the Red Cross.2 (g) The Hague Convention provides for a Bureau of Information to answer inquiries, to preserve property found on battlefields or left by prisoners, etc.3 § 115. Non-hostile Relations of Belligerents (a) In time of war it is necessary that belligerents should have certain relations not strictly hostile. Negotiations are often opened under a flag of truce. In regard to this the Brussels Code, Article 43, provides: "An individual authorized by one of the belligerents to confer with the other on presenting himself with a white flag, accompanied by a trumpeter (bugler or drummer), or also by a flag-bearer, shall be recognized as the bearer of a flag of truce. He as well as the trumpeter (bugler or drummer), and the flag-bearer, who accompanies him, shall have the right of inviolability." He may be accompanied, "if necessary, by a guide and an interpreter." A commander is not obliged to 1 Instr U. S. Armies, 124. See, as to prisoners of war, Appendix, pp. 359, 381, 390. 66 2 For details, see Geneva Convention, Appendix, p. 395; Holls, Hague Peace Conference," 120 et seq.; U. S. Naval War Code, Appendix, p. 406. 8 Appendix, p. 470. |