Prison Break : A Prisoner’s Right ? A Crime Deserving Punishment? Or a Moral and Legal Duty?! | Legal Memo
By: Ihsan Adel
Translated by: Mariam Alqam and Saja Abuammouneh
English version editing: 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 can the same be said about breaking out of jail? At face value, this sentence seems fairly plausible, but it’s not always the case. Some jurisdictions in fact do not charge escaped prisoners, others nevertheless consider breaking from prison an offence, and in which case prison guards can shoot at escapees, even if they are not armed. These jurisdictional differences on the legality of prison breaks are limited to times of peace. However, in times of war, jurisdictions hardly disagree on prisoner jailbreaks, especially when it comes to prisoners of war.
Prison Break Right Crime Legal
Prisoners living in wars and under occupation: If escape is not a duty, it is at least allowed
Escape from captivity was an issue discussed at the legal level from very early on. States have addressed it in the contexts of international humanitarian law, which governs a state of war and occupation, and reached a consensus that may seem surprising.
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 attempting to escape. If captured during their attempt to escape, prisoners are liable to disciplinary punishment or subject to stricter surveillance. If they have successfully escaped and were later recaptured, they are not liable to punishment for their previous acts.
In 1907, the Convention (IV) respecting the Laws and Customs of War on Land, known as the Hague Convention, was adopted. This Convention gained worldwide consensus and is today part of customary international law. In Article 8 of the Convention, the clause in the Brussels Declaration that allows using weapons against prisoners of war attempting to escape was dropped. However, the Convention emphasized that escaped prisoners of war who are retaken before being able to escape are liable to disciplinary punishment. On the other hand, prisoners “who, after succeeding in escaping, are again taken prisoners, are not liable to any punishment on account of the previous flight”. The 1929 Geneva Convention, in Article 50, reaffirmed the same position as that of the Hague Convention.
Articles 91-94 of the Third Geneva Convention (1949), which, incidentally, has been ratified by more than 190 countries, including Israel and the United States, have addressed the issue of escaped prisoners of war.
In essence, these articles provide that a successful escape may not be punished, bearing in mind the determinants of a successful escape, included in Article 91. Unsuccessful escape attempts shall be liable only to a disciplinary punishment and prisoners are subjected to special surveillance as a preventive measure. This is detailed in Article 92. Linked offences committed with the sole intention of facilitating escape and do not entail any violence against life or limb warrant only disciplinary punishment according to Article 93.
A similar treatment applies to civilians who are not prisoners of war, and who are arrested (for instance, for violating certain military orders or violating the criminal law of the country in which they live under occupation). These Internees, if recaptured after having escaped or when attempting to escape, are liable only to disciplinary punishment or surveillance under Article 120 of the Fourth Geneva Convention. Internees under surveillance are guaranteed their health is not affected as a result, and they continue to enjoy the safeguards granted by the Convention. The same applies to internees who aid and abet an escape or attempt to escape. They are only liable disciplinary punishment.
Internees who aid and abet an escape or attempt to escape are only liable disciplinary punishment
To sum, the legal consequence for a prisoner of war’s successful escape is that, if recaptured, they are not subject to 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 to disciplinary punishment. This disciplinary punishment, however, is not the result of a criminal offence, because escape in this case is not a crime as already established.
These rules have been reflected in numerous Law of War Manuals for states. For example, in the United States of America, 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 of why States have adopted this seemingly lenient policy regarding the escape of prisoners and detainees in a state of war?
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 raises a dilemma between two contradictory ideas: Attempts to escape may be seen as a demonstration of patriotism and of the most honourable intentions, rather than a crime. Because of this, prisoners of war have a right, a moral duty, and sometimes a legal duty to escape under the law of the prisoner’s state. On the other hand, an attempted escape is seen as a breach of discipline punishable by law, and the Detaining Power is under a strong obligation to preventing it from happening. These contrasting ideas have been described as the ‘paradox of escape.’
This favourable position for prisoners of war relative to other prisoners comes as a result of them not having committed any violation of international law by attempting to escape, as per ICRC. Therefore, their attempt to escape from their captors can be legitimately conceivable as a right deriving indirectly from the notion of ‘combat privilege,’ originally granted to prisoners of war. This essentially exempts them from punishment for their actions as long as they are consistent with the rules of international humanitarian law, unlike civilian internees, who can be subjected to disciplinary punishments if they are recaptured after a successful escape.
It is remarkable that the ICRC mentioned the issue of prison break as sometimes a ‘legal duty’ for prisoners of war. What is this supposed to mean, however?
In fact, several countries have already put obligations on their soldiers to try to escape from captivity if they are captured. One of the most prominent examples is Article III of the Code of Conduct for Members of the US Armed Forces, which states that if a US soldier is captured “they will continue to resist by all means available, will make every effort to escape and aid others to escape, will accept neither parole nor special favours from the enemy.” The Code also 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 adds that “the duty of a member of the Armed Forces to continue to resist does not mean a prisoner should engage in unreasonable harassment as a form of resistance. Retaliation by captors to the detriment of that prisoner and other prisoners is frequently the primary result of such harassment.”
The Code also refers to the idea of ‘parole,’ which is a promise by a prisoner of war to a captor to fulfill certain conditions—such as agreeing not to escape nor to fight again once released. The Code emphasises: Unless specifically directed by the senior American prisoner of war (POW) at the same place of captivity, an American POW will never sign nor otherwise accept parole.
Prison Break Right Crime Legal
What about prison escapes in times of peace and in stable countries? Is it considered a crime?
The controversial discussion about the legality of prison escape is not exclusively tackled in the Geneva Conventions specific to times of war, but also in many other situations and at peace. This idea has been discussed earlier in Europe in the 16th and 17th centuries, with the rise of the school of Natural Law and human right to freedom and liberty. One of the best representatives of the School of Salamanca is Francisco Suárez, a philosopher who lived in Granada between the 16th and 17th centuries. He considered the prisoner to have the full right to escape if his sentence was very harsh and was jailed under unhealthy conditions, even if the penalty was just.
This idea is originally based on that the guilty has to serve his sentence, but if the minimum conditions of decent life are not met, then he is entitled to protect himself from it, even if the penalty was just.
Victor Hugo, the French poet, novelist, and writer of Les Miserables, who died in 1885, indicated in his famous novel the distress of spending time in prison, and the issue of penalizing the escape.
He writes in Les Miserables about Jean Valjean, the protagonist of the novel, who was starving to death that he stole a loaf of bread, then he was captured and sentenced for five years. At the end of the fourth year, he escaped. During his escape, which lasted for two days, he dreaded everything, and every sound: the smoking roof, the passing man, the barking dog, the striking clock, the day because one can see, the night because one cannot see, the path, the bush, and even the sleeping.
On the evening of the second day, he was captured, and punished by adding 3 more years to his sentence. In the sixth year, he escaped again. One the guards found him hiding under the keel of a vessel under construction. He resisted, then he was punished by adding five more years to his sentence, because he escaped and resisted the guards. In the tenth year, he escaped again. As a result, three more years were added to his sentence. Again, he escaped in the thirteenth year only for four hours, then three years were added. He entered the prison in 1796 and released in 1815; 19 years just for breaking a glass and stealing a loaf of bread.
Thus, this philosophy was reflected in laws pertaining to prison escapes. Many countries considered that it is human nature that pushes people to escape from prison. Freedom is a natural right. Therefore, the punishment for that is unimaginable. In fact, this is just part of an entire philosophy, that the guilty has the right to struggle as much as he can to gain his freedom. This is similar to lying when accused of having committed a crime; the law does not punish the defendant for lying, but does so only for the original crime he or she is accused of. The same principle applies to jailbreaks, according to the Mexican lawyer and federal legislator Jose Romero.
Many countries considered that it is human nature that pushes people to escape from prison. Freedom is a natural right
Many countries consider jailbreaks a crime, such as the USA, Canada, China, and Russia, and, from the Arab world, Jordan (Article 228 of Penal Code), Morocco (Chapter 309 of Penal Code) and Egypt (Article 138 of Penal Code). In these countries, the act of escaping is punishable as it is considered an offence against the administration of Justice. On the other hand, many other countries, especially in Europe, such as Germany, Belgium, the Netherlands, Sweden, and Austria, in addition to Mexico, do not charge any of the escaped once they are recaptured.
These countries recognize that the act of escape itself is not a crime, but they, such as Germany, stipulate that escaped prisoners should not violate any of the laws during their escape, which is impossible. For example, if the prisoner destroyed the bars, it is considered a crime for damaging property. If the prisoner escaped with his prison clothes on, it is stealing. The same goes for beating or threatening another person. In Mexico, escape from prison is not punishable, but the prison guards have the right to shoot the escaped prisoners.
In some USA states, such as Virginia, the punishment depends on whether the criminal escaped using any means of force, violence, or setting fire to the prison and the danger of the crime for which he was originally imprisoned.
This legal difference is more critically questioned, if the escaped prinsoner is not a criminal. Jurists believe that even in this case, the person still has committed a crime. The entity to determine whether a person is guilty or not is the court, not the person himself. For justice to operate in an orderly manner, the prisoner must not be given the privilege to determine whether or not to be confined. However, others believe that if the arrest is unlawful, the person cannot be guilty of escape.
Conclusion Prison Break Right Crime Legal
This article is not an extensive exploration of the issue at hand, whether in times of peace or war. The article only aimed at highlighting the fact that this issue is not as simple as one of yes or no, but rather varies depending on times of peace and war, and the jurisdiction of the countries in question. It also aimed to emphasize that freedom fighters, always and in every circumstance, are exempt from punishment for jailbreaks.
It remains to point out that this blog is written against the backdrop of six Palestinian prisoners escaping from the Israel‘s Gilboa prison on September 6, 2021 though a tunnel. This article did not discuss whether the status of war prisoner applies to these prisoners, as this requires an individual examination of each case. However, the writer of this article would like to point out that among over 850,000 prisoners that Israel has detained since 1967, Israel has not treated any of them as prisoner of war. According to a research conducted by the writer himself, and will be published this month in the Asian Journal of International Law/ Cambridge University Press, this failure on Israel’s part to treat Palestinian prisoners as prisoners of war is a fundamental violation of international humanitarian law, and can’t be dealt as “right” or “acceptable”. Indeed, the abuse and oppression Palestinian prisoners are subjected to in Israeli jail, including depriving them from calling their families, lead to understandable and continuous longing to gain freedom by any 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
