anzac POW freemen in europe

Part 2 - Escape from Italian Prison Camps

Chapter 3 - The Hague Conventions

The history of organised international attempts to define the rules of war, began with the Treaty of Paris which ended the Crimean War (1853-56). In 1854, Great Britain and France adopted a "modus vivendi " that neither would seize enemy goods on neutral vessels, nor neutral goods on enemy vessels.

Although originally intended for the Crimean War only, the rules they laid down for Maritime Law, were incorporated into General International Law and were signed into force in Paris on 16 April, 1856. Switzerland signed its accession on 28 July, 1856.

Over the next half-century, a series of international conferences and resulting agreements culminated in the final signing off of the First International Peace Conference in the Hague on 29 July, 1899. This First Hague Peace Conference had been convened on the initiative of Nicholas II, the Czar of Russia "with the object of seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments".  Her Majesty, the Queen of the Netherlands, invited all interested governments to assemble at the Royal House in the Woods, at the Hague, on 18 May 1899 for the Conference. 26 Governments accepted her invitation.

The Conference adjourned on 29 July, 1899 having failed to reach agreement on the primary object for which it had been called, namely the limitation or reduction of armaments but did agree on three Conventions, three Declarations and six Resolutions to guide a second international peace conference which also, would be convened in the Hague. Among the six Resolutions was "the wish that the questions of the rights and duties of neutral countries may be inserted in the programme of the next Conference".
This second Peace Conference assembled on 15 June, 1907 in the Hall of the Knights, also in the Hague. It endorsed the Conventions, Declarations and Resolutions of the first Peace Conference and added two Conventions No.85, respecting the rights and duties of neutral powers and persons in case of war on land, and No.86, concerning the rights and duties of neutral powers in a naval war.

Convention No.85 is divided into 5 Chapters and 25 Articles as follows:

Chapter I: The rights and duties of neutral Powers - Articles 1-10
Chapter II: Belligerents interned, and wounded tended - Articles 11-15
Chapter III: Neutral persons - Articles 16-18
Chapter IV: Railway material - Article 19
Chapter V: Final provisions - Articles 20-25

Article 11 states - "A neutral Power which receives on its territory troops belonging to belligerent armies shall intern them, as far as possible, at a distance from the theatre of war. It may keep them in camps and even confine them in fortresses or in places set apart for that purpose. It shall decide whether officers can be left at liberty on giving their parole not to leave the neutral territory without permission".

Article 13 states - "A neutral power which receives escaped prisoners of war shall leave them in liberty. If it allows them to remain in its territory, it may assign them a place of residence. The same rule applies to prisoners of war brought by troops taking refuge in the territory of a neutral power".

Switzerland, the United States of America, Germany, and Great Britain were all among the 44 countries which signed this Convention on 18 October, 1907.

Before the Conference disbanded, it recommended that a third International Peace Conference be held, but due to the outbreak of the First World War this third conference never took place. Nevertheless, the rules which were codified at the First Peace Conference, and revised in 1907, operated through both world wars and subsequent conflicts. The Hague rules still govern the conduct of belligerent powers involved in armed conflicts today.

Although Japan had not ratified the Geneva Convention of 1929 concerning the treatment of prisoners of war, as their martial philosophy was that to die in battle was honourable but to be taken prisoner brought only shame and dishonour, the Third Geneva Convention of 1949 replaced the 1929 Convention with very clear and precise rules for the protection of POW.

The fundamental principles underlying the Third Geneva Convention were based on the Hague rules, which confirmed that POW are war victims not criminals, and should be treated humanely throughout their period of captivity. Atrocities such as the illegal medical experiments that the Nazis inflicted on many POW and civilians held in their concentration camps, the massacre by the Japanese of Australian nurses, and their use of troops as slave labour on the Burma-Siam railway, had appalled the world and like the use of poison gas in WW I, was explicitly banned in the 143 Articles of the Third Geneva Convention.

Article 41 required the text of the Convention to be posted in all POW camps, the rules simply but comprehensively written out so as to be clearly understood by all parties.

While most Australian POW were informed in a general way, about their rights under the Geneva Conventions, those who escaped to Switzerland were not aware that Switzerland had not ratified the Geneva Conventions (as neither had the Japanese). The Swiss rationale was that Switzerland was a neutral country, not one at war, and their military code and conduct was only governed by the Hague Conventions.

With hindsight, this difference should have been made clear to allied POW by the War Office in London, through the Military Attaches of the Allied Embassies in Bern. To this day most of their service men, both officers and other ranks, both "evades" who were "free men" and "internees" (who weren't) probably still think it was their service duty to escape any form of incarceration and endeavour to rejoin their lines and thus their unit. This responsibility was expunged when "held" on Swiss soil. They were then subject to Swiss Federal laws and the Hague Conventions which the Swiss Government had ratified.


M41 "The Laws of Armed Conflicts - A Collection of Conventions, Resolutions and Other Documents", edited by Dietrich Schindler and Jiri Toman. Henry Dunant Institute, 1988.
M12 "Even Wars Have Limits", Gretchen Kewley, Faculty of Law, Monash University, Melbourne.

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