File No. 763.72114/3322
The Secretary of State to the Secretary of War ( Baker)
Sir: I have the honor to acknowledge the receipt of your letter of February 21, 1918, in which you quoted certain telegraphic correspondence with General Pershing on the subject of the disposal of prisoners of war and you request information as to whether any agreement has been made with the German Government regarding rules governing the disposal by one belligerent of the prisoners taken from the other belligerent. You also inquire whether any further action by the War Department in regard to the disposal of prisoners of war is necessary.
In reply I beg to call your attention to article 24 of the treaty of 1799 with Prussia, revived by the treaty of 1828, which is now regarded as in force. This article is as follows:
And to prevent the destruction of prisoners of war, by sending them into distant and inclement countries, or by crowding them into close and noxious places, the two Contracting Parties solemnly pledge themselves to the world and to each other, that they will not adopt, any such practice; that neither will send the prisoners whom they may take from the other into the East-Indies, or any other parts of Asia or Africa, but that they shall be placed in some parts of their dominions in Europe or America, in wholesome situations; that they shall not be confined in dungeons, prison-ships, nor prisons, nor be put into irons nor bound, nor otherwise restrained in the use of their limbs; that the officers shall be enlarged on their paroles within convenient districts and have comfortable quarters, and the common men be disposed in cantonments open and extensive enough for air and exercise, and lodged in barracks as roomly and good as are provided by the party in whose power they are, for their own troops; that the officers shall also be daily furnished by the party in whose power they are, with as many rations, and of the same articles and quality, as are allowed by them either in kind, or by commutation to officers of equal rank in their own army; and all others shall be daily furnished by them with such ration as they shall allow to a common soldier in their own service; the value whereof shall be paid by the other party on a mutual adjustment of accounts for the subsistence of prisoners at the close of the war; and the said accounts shall not be mingled with, or set off against any others, nor the balances due on them, be withheld as a satisfaction or reprizal for any other article, or for any other cause real or pretended, whatever. That each Party shall be allowed to keep a Commissary of prisoners of their own appointment, with every separate cantonment of prisoners in possession of the other, which commissary shall see the prisoners as often as he pleases; shall be allowed to receive and distribute whatever comforts may be sent to them by their friends, and shall be free to make his reports in open letters to those who employ him: but if any officer shall break his parole, or any other prisoner shall escape from the limits of his cantonment after they [Page 56]shall have been designated to him, such individual officer or other prisoner, shall forfeit so much of the benefit of this Article, as provides for his enlargement on parole or cantonment. And it is declared, that neither the pretence, that War dissolves all treaties, nor any other whatever, shall be considered as annulling or suspending this and the next preceding Article; but on the contrary that the state of War, is precisely that for which they are provided, and during which they are to be as sacredly observed as the most acknowledged articles in the Law of nature and nations.
This Government, in the opinion of the Department, should comply with the foregoing treaty stipulation as nearly as the transportation facilities will allow, as it provides that prisoners “shall be placed in some parts of their dominions in wholesome situations.” No reference is made in this article to the surrender of prisoners of war to an ally. If this were done, it is clear that our obligations under the treaty as to the housing and care of prisoners of war might not be carried out by the ally cobelligerent.
Aside from this treaty, prisoners of war appear to be cared for according to the individual views of the belligerents or under special agreement. In the Crimean War Great Britain and France, then allies, agreed to divide prisoners of war as far as possible equally between the two countries. Any such agreement now between us and the cobelligerents would, of course, be subject to the stipulations of our treaty with Prussia.
It is believed, therefore, that the plan of sending to the United States the prisoners of war captured by our military and naval forces to be retained here is the proper course to follow as Germany might insist that under the treaty they should be returned to the United States. While they are retained abroad, consideration must of course be given to the provision contained in the proposed agreement with Germany, with which you are familiar, that “at no time shall prisoners of war be required to work within twenty miles from the front.”
It, therefore, appears that the details of the transportation of prisoners of war taken by the United States Army should be worked out by the War Department in accordance with the treaty stipulations mentioned above.
The foregoing information and opinions, so far as they apply to the Navy, have been brought to the attention of the Secretary of the Navy.
I have [etc.]