Vae Victis!
According to the older doctrine of international law all persons belonging to the hostile State, whether combatants or non-combatants, who happen to fall into the hands of their opponent, are in the position of prisoners of war. He could deal with them according to his pleasure, ill-treat them, kill them, lead them away into bondage, or sell them into slavery. History knows but few exceptions to this rule, these being the result of particular treaties. In the Middle Ages the Church tried to intervene as mediator in order to ameliorate the lot of the prisoners, but without success. Only the prospect of ransom, and chivalrous ideas in the case of individuals, availed to give any greater protection. It is to be borne in mind that the prisoners belonged to him who had captured them, a conception which began to disappear after the Thirty Years’ War. The treatment of prisoners of war was mostly harsh and inhuman; still, in the seventeenth century, it was usual to secure their lot by a treaty on the outbreak of a war.
The credit of having opened the way to another conception of war captivity belongs to Frederick the Great and Franklin, inasmuch as they inserted in the famous Treaty of friendship, concluded in 1785 between Prussia and North America, entirely new regulations as to the treatment of prisoners of war.
The Modern View.
The complete change in the conception of war introduced in recent times has in consequence changed all earlier ideas as to the position and treatment of prisoners of war. Starting from the principle that only States and not private persons are in the position of enemies in time of war, and that an enemy who is disarmed and taken prisoner is no longer an object of attack, the doctrine of war captivity is entirely altered and the position of prisoners has become assimilated to that of the wounded and the sick.
Prisoners of War are to be honorably treated.
The present position of international law and the law of war on the subject of prisoners of war is based on the fundamental conception that they are the captives not of private individuals, that is to say of Commanders, Soldiers, or Detachments of Troops, but that they are the captives of the State. But the State regards them as persons who have simply done their duty and obeyed the commands of their superiors, and in consequence views their captivity not as penal but merely as precautionary.
It therefore follows that the object of war captivity is simply to prevent the captives from taking any further part in the war, and that the State can, in fact, do everything which appears necessary for securing the captives, but nothing beyond that. The captives have therefore to submit to all those restrictions and inconveniences which the purpose of securing them necessitates; they can collectively be involved in a common suffering if some individuals among them have provoked sterner treatment; but, on the other hand, they are protected against unjustifiable severities, ill-treatment, and unworthy handling; they do, indeed, lose their freedom, but not their rights; war captivity is, in other words, no longer an act of grace on the part of the victor but a right of the defenseless.
Who may be made Prisoners.
According to the notions of the laws of war to-day the following persons are to be treated as prisoners of war: