Prison Break : A Prisoner’s Right ? A Crime Deserving Punishment? Or a Moral and Legal Duty?! | Legal Memo
By: Ihsan Adel
Translated and editing: Mariam Alqam, Saja Abuammouneh, and Ahmed Almassri
Prison Break Right Crime Legal
Introduction
A person is sent to jail when they have committed -or are believed to have committed- a crime. But is it also a crime to break out of jail? At first glance, this seems plausible, but it’s not always the case. Some jurisdictions do not charge escaped prisoners, while others consider breaking out of prison an offense, allowing prison guards to shoot at escapees even if they are unarmed. These jurisdictional differences regarding the legality of prison breaks are limited to times of peace. However, in times of war, the situation is different, and prisoner jailbreaks might be, or rather should be, considered legitimate acts, especially concerning prisoners of war.
Prisoners during War and under Occupation: If Escape Is Not a Duty, It Is at Least Permitted
The legality of escaping captivity has long been a topic of legal discussion. States have addressed this issue within the framework of international humanitarian law, which governs states of war and occupation, reaching a surprising consensus.
In the Brussels Declaration of 1874 (the Draft International Declaration on the Laws and Customs of War), Article 28 stipulated that arms may be used against a prisoner of war (POW) attempting to escape. If captured during their escape attempt, prisoners are liable to disciplinary punishment or stricter surveillance. If they successfully escape and are later recaptured, they are not liable to punishment for their previous acts.
In 1907, the Hague Convention (IV) respecting the Laws and Customs of War on Land was adopted. This Convention gained worldwide consensus and is now part of customary international law. Article 8 of the Convention omitted the clause from the Brussels Declaration that allowed the use of weapons against prisoners of war attempting to escape. Instead, it emphasized that prisoners of war who are retaken before successfully escaping are liable only to disciplinary punishment. Conversely, prisoners “who, after succeeding in escaping, are again taken prisoner, are not liable to any punishment on account of the previous flight.” The 1929 Geneva Convention, in Article 50, reaffirmed this position.
Articles 91-94 of the Third Geneva Convention (1949), which has been ratified by more than 190 countries, including Israel and the United States, address the issue of escaped prisoners of war.
In essence, these articles provide that a successful escape may not be punished, as outlined in Article 91. Unsuccessful escape attempts are liable only to disciplinary punishment, even if repeated, and can be subject to special surveillance as a preventive measure, detailed in Article 92. Offenses committed solely to facilitate escape and not involving violence against life or limb warrant only disciplinary punishment according to Article 93.
A slightly different approach applies to civilians who are not prisoners of war but are arrested, for instance, for violating certain military orders or criminal law. These detainees, if recaptured after escaping or attempting to escape, are liable only to disciplinary punishment or surveillance under Article 120 of the Fourth Geneva Convention. Detainees under surveillance are guaranteed that their health will not be affected as a result, and they continue to enjoy the safeguards granted by the Convention. The same applies to detainees who aid and abet an escape or attempt to escape -they are only liable to disciplinary punishment.
Detainees who aid and abet an escape or attempt to escape are only liable to disciplinary punishment
In summary, the legal consequence for a prisoner of war’s successful escape is that if recaptured, they are not subject to any criminal or disciplinary action for that escape. However, if the escape attempt is unsuccessful, or if the person involved in the escape is a civilian and not a prisoner of war, then they are liable only to disciplinary punishment. This disciplinary punishment is not the result of a criminal offense, as escape in this context is not considered a crime.
These rules are reflected in numerous Law of War Manuals for states. For example, in the United States, prisoners of war who assist or incite escape or attempted escape are subject only to disciplinary punishment.
Prison Break Right Crime Legal
The Paradox of Escape
This issue raises the question: why have states adopted this seemingly lenient policy regarding the escape of prisoners and detainees during wartime?
In its Commentary (1960) and its updated Commentary (2020) on the Third Geneva Convention, the International Committee of the Red Cross (ICRC) notes that the escape of a prisoner of war presents a dilemma between two contradictory ideas. On one hand, attempts to escape can be seen as a demonstration of patriotism and honorable intentions, rather than a crime. Prisoners of war may have a right, a moral duty, and sometimes even a legal duty to escape under the laws of their home country. On the other hand, an attempted escape is viewed as a breach of discipline punishable by law, and the detaining power is obligated to prevent it. This contrast is described as the ‘paradox of escape.’
This privileged position for prisoners of war, relative to other prisoners, stems from the fact that they have not committed any violation of international law by attempting to escape, according to the ICRC. Therefore, their attempts to escape can be seen as a right indirectly derived from the notion of ‘combat privilege,’ which exempts them from punishment for their actions as long as they adhere to international humanitarian law. This is unlike civilian detainees, who can be subjected to disciplinary punishment if recaptured after a successful escape. Additionally, people under alien domination and occupation are not obligated to obey the occupying authorities, as derived from Articles 67 and 68 of the Fourth Geneva Convention, which instruct the courts of occupying powers to consider that the accused is not a national of the Occupying Power.
As noted above, the ICRC commentary also mentions that escaping captivity is sometimes a ‘legal duty’ for prisoners of war. What does this mean?
Several countries require their soldiers to attempt escape if captured. For instance, Article III of the Code of Conduct for Members of the US Armed Forces states that if a US soldier is captured, they “will continue to resist by all means available, make every effort to escape and aid others to escape, and accept neither parole nor special favors from the enemy.” The Code further asserts that a prisoner of war “must be prepared to escape whenever the opportunity presents itself.”
According to the Code of Conduct for Members of the US Armed Forces, a prisoner of war “must be prepared to escape whenever the opportunity presents itself.”
The Code of Conduct for Members of the US Armed Forces also clarifies that the duty to resist does not mean prisoners should engage in unreasonable harassment as a form of resistance, as this often leads to retaliation by captors to the detriment of the prisoner and others.
Furthermore, the Code addresses the concept of ‘parole,’ a promise by a prisoner of war to fulfill certain conditions, such as agreeing not to escape or to fight again once released. The Code emphasizes that unless specifically directed by the senior American prisoner of war at the same place of captivity, an American POW should never sign or otherwise accept parole.
Prison Break Right Crime Legal
The Legality of Prison Escapes in Times of Peace and Stable Countries
Is escaping from prison considered a crime in times of peace and stable countries?
The controversial issue of the legality of prison escapes is not only addressed in the Geneva Conventions specific to times of war but also in various other situations, including peacetime. This idea has been discussed as far back as the 16th and 17th centuries in Europe, with the rise of the school of Natural Law and the human right to freedom and liberty. Francisco Suárez, a philosopher from the School of Salamanca, believed that prisoners had the right to escape if their sentence was overly harsh or if they were jailed under unhealthy conditions, even if the penalty was just.
This idea is based on the principle that while the guilty must serve their sentence, if the minimum conditions of a decent life are not met, they are entitled to protect themselves, even if the penalty is just.
Victor Hugo, the French poet and novelist who wrote Les Misérables and died in 1885, vividly illustrated the distress of imprisonment and the issue of penalizing escape. In Les Misérables, Jean Valjean, the protagonist, was sentenced to five years for stealing a loaf of bread to feed his starving family. He attempted to escape several times, each time resulting in harsher penalties and extending his sentence from five years to nineteen years. Hugo’s depiction highlights the harsh reality and the natural human desire for freedom.
This philosophy has influenced laws regarding prison escapes. Many countries acknowledge that the instinct to escape is a natural human response to confinement. Therefore, the act of escaping is often not severely punished. This is similar to the rule that lying to defend oneself in court is not punishable; only the original crime is. The same applies to jailbreaks, according to Mexican lawyer and federal legislator Jose Romero. Jailbreaks are not considered a crime in many countries because the struggle for freedom is a natural right.
Jailbreaks are not considered a crime in many countries because the struggle for freedom is a natural right
Many countries, including the USA, Canada, China, and Russia, as well as Jordan (Article 228 of Penal Code), Morocco (Chapter 309 of Penal Code) and Egypt (Article 138 of Penal Code), consider jailbreaks a crime, punishable as an offense against the administration of justice. On the other hand, several European countries, such as Germany, Belgium, the Netherlands, Sweden, and Austria, along with Mexico, do not charge escapees upon recapture. These countries recognize that the act of escape itself is not a crime. However, in Germany, for example, if escaped prisoners violate any laws during their escape, such as damaging property or stealing prison clothes, those acts are punishable. In Mexico, while escaping prison is not punishable, prison guards have the right to shoot escapees.
In some US states, such as Virginia, the punishment for escape depends on whether the prisoner used force, violence, or set fire to the prison, as well as the severity of the original crime.
This legal distinction becomes more critical when considering an escapee who is not guilty of a crime. Some jurists argue that even in such cases, the act of escape is a crime, as it is up to the court, not the individual, to determine guilt. For justice to operate orderly, prisoners must not decide whether or not to remain confined. However, others believe that if the arrest is unlawful, the escape cannot be considered a crime.
Conclusion Prison Break Right Crime Legal
This article is not an exhaustive exploration of the issue at hand, whether in times of peace or war. Its aim is to highlight that the legality of prison escapes is not a simple matter of yes or no, but varies depending on whether it is a time of peace or war and the jurisdiction of the country in question. It also emphasizes that freedom fighters are always and in every circumstance exempt from punishment for jailbreaks.
This discussion is particularly relevant in light of the six Palestinian prisoners who escaped from Israel’s Gilboa prison on September 6, 2021, through a tunnel. This article does not delve into whether these prisoners qualify as prisoners of war, as that determination requires an individual examination of each case. However, it is important to note that among the over 850,000 Palestinians detained by Israel since 1967, none have been treated as prisoners of war. According to research co-authored by the author, soon to be published in the Asian Journal of International Law by Cambridge University Press, Israel’s failure to treat Palestinian prisoners as prisoners of war constitutes a fundamental violation of international humanitarian law and cannot be considered “legal” or “acceptable.”
Within the context of settler colonialism, prolonged illegal occupation, and apartheid that extends to the punitive and administrative rules governing Palestinian prisoners in Israeli jails, and considering the long-standing policy of abuse and oppression -including deprivation of family contact- that Palestinian prisoners face, it becomes understandable that there is a continuous longing for freedom by any available means.
* Law for Palestine bears no responsibility for the content of the articles published on its website. The views and opinions expressed in these articles are those of the authors and do not necessarily reflect the official policy or position of the Organisation. All writers are encouraged to freely and openly exchange their views and enrich existing debates based on mutual respect.
Prison Break Right Crime Legal
