§ 337. Neutral territory is an asylum to prisoners of war of either belligerent in so far as they become free ipso facto by their coming into neutral territory. And it matters not in which way they come there, whether they escape from a place of detention and take refuge on neutral territory, or whether they are brought as prisoners into such territory by enemy troops who themselves take refuge there.[653]
[653] The case of prisoners on board a belligerent man-of-war which enters a neutral port is different; see below, § [345].
The principle that prisoners of war regain their liberty by coming into neutral territory has been generally recognised for centuries. An illustration occurred in 1558, when several Turkish and Barbary captives escaped from one of the galleys of the Spanish Armada which was wrecked near Calais, and, although the Spanish Ambassador claimed them, France considered them to be freed by the fact of their coming on her territory, and sent them to Constantinople.[654] But has the neutral on whose territory a prisoner has taken refuge the duty to retain such fugitives and thereby prevent them from rejoining the enemy army? Formerly this question was not settled. In 1870, during the Franco-German War, Belgium answered the question in the affirmative, and detained a French non-commissioned officer who had been a prisoner in Germany and had escaped into Belgian territory with the intention of rejoining at once the French forces. Whereas this case was controversial,[655] all writers agreed that the case was different if escaped prisoners wanted to remain on the neutral territory. As such refugees might at any subsequent time wish to rejoin their forces, the neutral was by his duty of impartiality considered to be obliged to take adequate measures to prevent their so doing. There was likewise no unanimity regarding prisoners brought into neutral territory by enemy forces taking refuge there. It was agreed that such prisoners became free by being brought into neutral territory; but whereas some writers[656] maintained that they could not be detained in case they intended at once to leave the neutral territory, others asserted that they must always be detained and that they must comply with such measures as the neutral considers necessary to prevent them from rejoining their forces.
[654] See Hall, § 226, p. 641, note 1.
[655] See Rolin-Jaequemyns in R.I. III. (1871), p. 556; Bluntschli, § 776; Heilborn, Rechte, pp. 32-34.
[656] For instance, Heilborn, Rechte, pp. 51-52.
Article 13 of Convention V. settles the controversy by enacting that a neutral who receives prisoners of war who have escaped or who are brought there by troops of the enemy taking refuge on neutral territory, shall leave them at liberty, but that, if he allows them to remain on his territory, he may—he need not!—assign them a place of residence so as to prevent them from rejoining their forces. Since, therefore, everything is left to the discretion of the neutral, he will have to take into account the merits and needs of every case and to take such steps as he thinks adequate. But so much is certain that a belligerent may not in every case categorically demand from a neutral who receives escaped prisoners, or such as have been brought there by troops who take refuge, that he should detain them.
The case of prisoners who, with the consent of the neutral, are transported through neutral territory is different. Such prisoners do not become free on entering the neutral territory, but there is no doubt that a neutral, by consenting to the transport, violates his duty of impartiality, because such transport is equal to passage of troops through neutral territory (article 2 of Convention V.).
Attention must, lastly, be drawn to the case where enemy soldiers are amongst the wounded whom a belligerent is allowed by a neutral to transport through neutral territory. Such wounded prisoners become free, but they must, according to article 14 of Convention V., be guarded by the neutral so as to insure their not again taking part in military operations.[657]
[657] See also article 15 of Convention X. and below, § [348a].