LAW OF LAND WARFARE 
 

J. A. G. S. TEXT NO. 7 
 

The Judge Advocate General's School 
 

ANN ARBOR, MICHIGAN 
 
THE JUDGE ADVOCATE GENEBAL'S SCHOOL 
 

PPepared for instructional purposes only. 
 

JAGS TEXT No. 1 MILITARY JUSTICE 
 

Procedural guide for staff Judge advocates. 
 

JAGS TEXT No. 2 MILITARY JUSTICE 
 

Comments on common errors and irregularities 
 

in court-martial procedure. 

JAGS TEXT No. 3 MILITARY AFFAIRS 

Selected materials in the bibliography, procedure and substantive law of military affairs. 

JAGS TEXT No. 4 WAR PObERS AND MILITARY JURISDICTION 
 

Introduction to military jurisdiction and an 
 

orientation in the field of military law. 
 

JAGS TEXT No. 5 GOVERNMENT CONTRACTS 
 

The principles and practice relating to go$-ern

ment contracts. 
 

*JAGS TEXT No. 6 CASEBOOK - GOVERNMENT CONTRACTS 

A companion volume to JAGS TEXT No. 5 containin

edited cases on government contracts. 

JAGS TEXT'No. 7 LAW OF LAND WARFARE 
 

Commentary on the rules of land warfare. 
 

JAGS TEXT No. 8 CLAIMS BY AND AGAINST THE GOVERNMENT 
 

Principles, statutory provisions and procedure 

relating to Army tort claims. 
 

*JAGS TEXT No. 9 SELECTED OPINIONS - MILITARY AFFAIRS 

Companion volume to JAGS TEXT No. 3, containing 

cur~ent selected opinions of the Military Affai

Division, Office of The Jud%e Advocate General. 

JAGS TEXT No. 10 Publication discontinued. 
 

JAGS TEXT No. 11 LAW OF BELLIGERENT OCCUPATION 
 

JAGS TEXT No. 12 GOVERNMENT CONTRACTS AND READJUSTMENT 
 

Legal, procedural and fiscal principles involve

in the termination of government contracts. 
 

*Available only to students while in attendance. 
 
This text is intended as an aid to students in The Judge Advocate General's School in the study of the Rules of Land Warfare, 

Field Manual 27-10. The arrangement as well as the paragraph numbers follow the Field Manual. Fundamental principles rather than 

the more minute details are emphasized, although divergences of 

interpretation and practice are indicated. Topics in the Field 

Manual requiring no additional discussion are omitted. 

The scope of the text is limited to the following topics: 

basic principles of land warfare, status of persons in war, the 

conduct of hostilities, prisoners of war, and the sick, wounded 

and dead. 

This text was prepared in the Civil Affairs Department of The 

Judge Advocate General's School. 

REGINALJI C . MILLER, 

Colonel, J .A.G .Do, 

Commandant . 

The Judge Advocate General's School, 
 

United States Army, 
 

Ann Arbor, Michigan, 
 

1September 1943, 
 

Reissued 1July 1945, 
 
PART I 
 

Chapter Page 
 

I. BASIC RULES AND PRINCIPLES 


General........................................ 
 Conventional Rules ............................. 
 Customary Rules ................................ 
 Basic Principles ............................... 
 Military Necessity ........................ 
 Humanity.................................. 
 Chivalry.................................. 
 Force of R~lea.~..... .......................... 
 Military Jurisdiction .......................... 
 

I1. QUALIFICATIONS OF ARMED FORCE OF BELLIGERENTS 
 

General Division of Enemy Population ........... 
 Lawful Belligerents ............................ 
 The Army .................................. 
 Irre~lars................................ 
 Levee en Masse............................ 
 Combatants and Noncombatants .............. 
 Guerrillas..................................... 

HOSTILITIES 

Commencement of Hostilities .................... . Treatment of Alien Enemies ..................... 
 Means of Injur-ing the Enemy Limited ............ Hague Declaration No . XIV of October 18, 1907.. Poisons, Gases and Chemicals ................... Treachery and Assassination.,.,.,~O 0000 

Quarter.......................................; 
 

Employment of Arms, etc ., Causing Unnecessary 

Injury.................................... 
 Subjects Not to be Compelled to Take Part in 

Operations Against Their Own Country ...... Stratwens..................................... 
 
Chapter Page 

I11. HOSTILITIES (~ontd .) .. 

Bombardments. Assaults. and Sieges ............. 40 

Assaults mdBombardments ................. 40 

Seizure and Destruction of Property During 

Operations; Devastation ............. 43 

.pillage........................................ 46 
 

Unanchored Submarine Mines ..................... 46 
 

IV. PRISONERS OF WAR 

Who May Become Prisoners of War ................ 
 Civilian Internees ........................ . 
 Civilians Following the Army.............. 
 Armed Forces ............................. 
 Subjects of Neutral States ................ 
 Personal Safeguards Accorded Prisoners of War .. 
 Reprisals Against Prisoners of Mar ........ 
 Persons and Honor to be R3~pected ......... 
 Duty of Maintenance ....................... 
 Discrimination............................ 
 Must Give Name and Rank; Coercion to Obtain 

Military Information Prohibited ........... Effects That May be Retained by Prisoners ...... Evacuation; Notification of Capture ............ Prisoners in Places of Danger ............. Sick and Wounded .......................... 
 Notification of Capture ................... 
 Internment..................................... 
 Unhealthy Location ........................ 
 Segregation of Nationalities .............. 
 Installation of Camps; Rations; Clothing ....... 
 Installation of Camps ..................... 
 Rations................................... 
 Clothing.................................. 
 Sanitation and Medical Care .................... 
 Sanitation................................ 
 Medical Care .............................. 
 Religious Freedom .............................. 
 Recreation..................................... 
 Courtesy and Discipline ........................ 
 Communication of Orders, etc .............. 
 
Pay and Maintenance of Officers and Assimiles .. 71 
 

Assimiles................................. 71 
 

Officers Pay and Maintenance .............. 72 
 

Authorized and Prohibited Work of Prisoners 
 

of War .................................... 75 
 

Officers and Assimiles .................... 75 
 

Other Prisoners of War .................... 76 
 

Unhealthful or Dangerous Work ............. 78 
 

Kind of Work Prohibited ................... 80 
 

Wages of Prisoners of War and Deductions for 
 

Maintenance............................... 83 
 

Work Accidents ............................ 86 
 

Correspondence and Parcels ..................... 87 
 

Protecting Power and Complaints ................ 90 
 

Relief Societies ............................... 92 
 

Official Information Bureau .................... 93 
 

Crimes and Offenses ............OOOOO.O......... 94 
 

General................................ 94 
 

Disciplinary Punishment ................... 96 
 

Judicial Proceedings ...................... 100 
 

Escape.................................... 102 
 

C~ncurrent Jurisdiction of Civil Courts 
 

over prisoners of war ................ 106 
 

Release of Prisoners ........................... 106 
 

ad of war ................................ 106 
 

Return of Sick and Wounded ................ 109 
 

Exchange.................................. 111 
 

Military Service After Repatriation or 

Exchame...................o o ~ o ~112~ ~ 

Parole.................................... 113 
 

Death in Captivity ............................. 120 
 

V . SICK. WOUNDED AND DEAD 

General Rules .................................. 121 
 

Treatment of Wounded and Dead .................. 125 
 

Ownership of Personal Effects .................. 127 
 

Sanitary Formations and Establishments ......... 130 
 

Personnel of Sanitary Formations and 
 

Establishments.. .......................... 134 
 

Buildings and Materiel ......................... 138 
 

Sanitary Transportation ........................ 142 
 

Sanitary Aircraft .............................. 145 
 

The Distinctive Emblem of the Red Cross ........ 149 
 
Am. J. Int. L. 


Baker and Crocker 


Baty and Morgan 


Bordwell 


Bri erly 


Davis 


Des Gouttes 


Edmonds and Oppenheim 


Fenwick 


Flory 


Garner 


Grotius Society 


Hackworth 


Hall 


ed. (1933) 

- The American Journal of International 

Law 

-	 The Laws of Land Warfare Concerning The 

Rights and Duties of Belligerents as 

Existing on August 1, 1914 (1918) 

-	a: Its Conduct and Legal Results (1915

-	The Law of War Between Belligerents (1908

-	The Law of Nations, 2nd ed. (1936) 

-	 Davis, The Elements of International Law 

With an Account of its Origin, Sources 

and Historical Development, 4th ed . (1916

by Gordon E. Sherman 

- La Convention De Geneve pour LfAmeliorati

DLI Sort Des Blesses et Des Malades Dans Le

Armees En Campagne DU 27 Juillet 1929 (19

-	 Land Warfare, An Exposition of the Laws an

Usages of War on Land for the Guidance of 

Officers of His Majesty's Army (1912) 

-	 International Law (1924) 

-	 Prisoners of War, A Study in the Development of International Law (1942) 
 

-	 International Law and the World War (1920

-	 The Transactions of the Grotius Society 

-	 Digest of International Law (1940) 

-	 Hall, A Treatise on International Law, 7th 

ed. (1917), by A. Pearce Higgins 
Lam enc e 
 

Lauterpacht 
 

Moore 
 

Phillipson 
 

Raamus sen 
 

Spaight 
 

U.S.R.L.W. 
 

Walker 
 

We st lake 
 

Winf ield 
 

and Applied by the United States (1922) 

- Lawrence, The Principles of Internationa

Law, 7th ed. (1923), by Percy .H.Winf ield 

-	 L. Oppenheim, International Law, A Treatf

6th ed. (1940), by H. Lauterpacht 

-	A Digest of ~nternational Law (1906) 

-	 International Law and The Great War (191

-	 Code Des Prisonniers De Guerre, Commentai

De La Convention DU 27 Juillet 1929, Relative au Traitment Des Prisonniers De 

Guerre (1931) 

-	 War Rights on Land (1911) 

- United States, War Department, Office of 

the Chief of Staff. Rules of.Land Warfar

1914, corrected to April 15, 1917, Washington, 19.17 

- Pitt Cobbett, Cases on International Law, 

5th ed. (1937), by Wyndham Legh Walker 

-	 International Law (1907) 

- The Foundations and the Future of Inteynational Law (1941) 
BASIC RULES AND PRINCTPLES 

1. General.--The laws of war are the rules respecting war- 

fare with which, according to international law, belligerents and 

neutrals are bound to comply.' The rules of land warfare had 
 

their origin in the practices and usages of war which gradually 
 

grew into customs or were embodied in conventions .2 Thus, the 
 

existing law is comprised of two branches--the conventional law 
 

and the customary law. In either case, its authoritativeness 
 

(i.e., its character as law) arises from the consent of nations. 

Express consent is given by 'treaties or conventions, tacit consent 

by habitual obseryance of certain rules (custom) between states. 3 

In dealing with customary law, two difficulties may present 
 

themselves in any given case-he difficulty of proving the par- 

ticular custom and the difficulty in determining whether a par- 
 

ticular practice has developed into a custom (i.e., has it been 
 

1. Edmonds and Oppenheim, par. I-. 

2. The term "conventional" law is used to indicate those rules 
 

that have been embodied in treaties or conventions as dis- 
 

tinguished from cus$omary internstimal law, i.~.,the unwritten 
 

rules. 
 

3. Lawrence, p, 95. See, however, Brierly, p. 40, where it is 

stated: "Implied consent is not a philosophically sound 

explanation of customary law, international or municipal; a 

customary rule is observed, not because it has been consented to, 

but because it is believed to be binding * ,* *" 
4


a particular usage has been agreed to is a matter of evidence. 

The test for determining whether a usage has become an obligator

custom is that it must be approved by the common consent of civi

ized nations .5 All need hot necessarily consent to create customary law if the practice be accepted generally. The dissent o

assent of some states may be more authoritative than that of 

other states. The dissent of Switzerland with respect to an approved maritime practice would not be as important as the ' dissen

of the United States or Great Britain. 
 

The evidences of custom are found in: 
 

(1) Historical documents, which contain the record of 

international practice such as records of the foreign offices of 

the several states; diplomatic correspondence and state papers. 

(2) The "works of jurists and commentators, who by 

years of labor, research, and experience, have made themselves 

peculiarly well acquainted with the subjects of which they treat

Such works are resorted to by judicial tribunals, not for the 

speculations of their authors concerning what the law ought to 

be, but for trustworthy evidence of what the ,law really is. 11 6 

5 The Scotia, 14 Wall. 170. 
 

6. Paquete, Habana and The Lola, 175 U.S . 677. 
(3) Decisions of international courts and courts of 

arbitration. 

7 (4) Decisions of national courts. 
 

2 	 Conventional Rules.--The conventional laws of war on 

8 land include the following international agreements: 
 

(1) The Geneva Conventions (~ed cross) of 1864, 1906, 

and 1929, which deal with the treatment of the sick and wounded. 

2 The Geneva Convention of 1929 concerning the trea

' 

ment of prisoners of war. 
 

(3) The Hague Convention of 1899 No. 11,relating to. 

the laws and customs of war on land; the actual rules were contained in regulations annexed thereto. 

(4) The Hague Convention of 1907 No. IV, relating to 
 

the laws and customs of war on land; the actual rules were con- 
 

tained in regulations annexed thereto. 
 

(5) The Hague Convention of 1907 No. 111, relative to 

the opening of hostilities. 

(6) The Hague Convention of 1907 No. V, resyecting the 

rights and duties of neutral powers and persons in case of .way on 

land. 
 

-

7. Thirty Hogsheads of Sugar v, Boyle, 9 ~r&ch. 191, 198, 

8. The united States has ratified or adhered to all of these. 
 
(7) 

g, 

the laying of automatic submarine contact mines. 

(8) The Hague Convention of 1907 No. IX, concerning 

bombardment by naval forces in time of war. 

(9) The Hague Declaration of 1907 No. XIV, prohibiting 

the discharge of projectiles and explosives from balloons. 

All of these agreements, with the exception of the last, 

bind the powers that accepted them9 iithout limit of time. All o

the above treaties may be denounced after notice. The denunciation affects the notifying power only and becomes operative afte

one year f~om the date in which the notice was given. lo The 

Hague Conventions of 1899 and 1907? respecting the laws and customs of war on land provide that the Convention shall be binding 

upon the signatory powers only if all the belligerents are partie

to the on vent ion." Thus, they cease to be binding upon the 

belligerents whenever a non-signatory state, however insignificant, joins one of the bslligerents.12 The Geneva Conventions of 

9. Sec. I, Giro 136, WD, May 7, 1942, states that the Hague 

Declaration of 1907 No. XIV, is not binding and will not be 

observed. See also FM 27-10, par. 27. 

10. See FM 27-10, par. 5. The Geneva Conventions of 1929 do 

not permit such denunciation to take effect during a war in 

which the denouncing party is involved, 

11. This clause is called a "general participation clause". 

12. Garner, Vol, I, p. 18. 
1929 relating to the treatment of sick and wounded and of prisoners of war provide that if a belligerent is not a party to the 

Convention, its provisions shall nevertheless be binding as between all belligerents who are parties thereto. 13 

By the Hague Conventions of 1899 and 1907, the parties agree 

to issue instructions to their land forces in conformity with the 

14 regulations annexed to the Conventions. 

3. Customary Rules.--The customary or unwritten law still 

plays an important part notwithstanding the Hague and Geneva 

Conventions .. It is expressly declared by the preamble to the 

Hague Convention of 1907 No. IV, that the populations and belligerents remain under the protection of customary law in cases 

not covered by the Convention. Again, where the Conventions or 

any particular provisions are not applicable as between the belligerents, the rules of customary law apply. 1-5 

4. Basic Principles.--a. Military Necessity. The limits -

set by customary and conventional law within which force may be 

used are governed by general principles and specific prohfbitions, 

13. Lauterpacht, p. 186. 

14. FM 27-10 is issued pwsuant to this obligation. 

15. Those provisions oi? a convention that are declaratory of 

customary law do not lose their binding force by reason of 

the abrogation of the convention. Hackworth, Vol. I, p. 17. 
forms of regulated violence which may bring about the complete 
 

submission of the enemy as soon as possible. The preamble of the 

Hague Conventions gives evidence that "military necessity has 
 

been taken into account in framing the regulations, and'has not 
 

been left outside to control and ltmit their application". l6 llle 

signatories expressly stated that the wording of the rules which 

were drawn up "has been inspired by the desire to diminish the 
 

evils of war so far as military necessity permits".17 Military 

necessity as understood by the United States does not purport to 

indicate circumstances when a belligerent commander is free from 

a duty to observe the law of nations .18 This view of military 
 

necessity is to be distinguished from the doctrkie of military 
 

necessity (Kriegsraison) propounded by certain German writers 
 

in which the rules of war cease to operate (i.e., measures in 
 

violation, of law are justifiable) when the necessity of the 
 

situation requires. This theory may be epitomized by the phrase 

"necessity knows no law". 19 
 

16. Westlake, Part 11, p. 57, 

17. Westlake, Part 11, pa 57. 
 

18. Hyde, Vol. 11, p. 301. 
 

19. Garner, Vol. 11, p , 196. 
Illustrative case.-- 
 

A violation of the laws of war by a belligerent 
 

alone offers either a means of escape from extreme 
 

danger or the overpowering of the enemy. Military 
 

necessity, as understood by the overwhelming weight of 
 

opinion, does not justify such violation .20 
 

The l@s of war may be set aside in certain circumstances: 
 

(1) Reprisals for breaches of the laws of war on the 
 

21
 part of the enemy. 
 

(2) Where the prohibitory rule of law contains an 

express provision that it may be abrogated because of the "necessity of war". For example, Article 23(g) of the Hague Regulationsn forbids the destruction or seizure of enemy property, 

"unless such destruction or seizu~e be imperatively demanded by 

the necessities of wax-'' . 

(3) Where the rule of conduct to which the belligerents 

are to conform is subject to the implied'assumption that the necessities of war allow compliance, e.:., Article 46 of the Hague 

regulation^,^^ which prescribes respect for private property. 
 

20. Lauterpacht, p. 184. 

21. FM 27-10,pars. 346, 358. . 

22. FM 27-10,par. 313. 
 

23. FM 27-10,par. 323. 
 
enemy and destroy him. This principle is modified by the claims 

of humanity to the extent of surrendering the "use of any engine 

of war whose military effect is disproportioned to the suffering 

it entails" .24 The principle of humanity limits the nature of 

the force used, the manner in which it shall be employed, and 

excludes certain persons and things from its application. 25 

-

c . chivalry is Synonymous With Military Honor. The principle of chivalry enjoins good faith and denounces bad faith or 

treachery. 26 

5. Force of Rules.--Circular 136, War Department,.May 7, 

1942,' states that although all of the conventions set out on page 

VI of Field Manual 27-10 are not binding on all of the countries 

with which the United States is at war, they will be observed and 

enforced by the Army of the United States, as provided in Field 

Manual 27-10, exceptfng the"~ague Declaration No. XIV, October 

18, 1907, prohibit4ng the discharge of projectiles and explosives 

24. 	 Spaight, p. 75. 

25. 	 Some examples of this principle may be found in FM 27-10, 

pars. 28, 32, 33, 34, 45. 

26. 	 Examples of this p~inciple are found in FM 27-10, pars, 30, 

31, 41, 233, 234. 
from balloons. The latter is not binding and will. not be ob27 served by the United States. 

7. Military Jurisdiction. --28~eneral courts -martial have 

concurrent jurisdiction with military commissions to try persons 

subject to military law for violations of the laws of warn2' The 

fact that violations of the laws of war are not specifically liste

in the punitive Articles does not deprive courts-martial of jurisdiction.30 Officers, soldiers, and retainers and others connected 

with the Army may be tried under Article of War 96 for violations 

of the laws of war, either as (a) disorders and neglects to the 

prejudice of good order and military discipline, (b) conduct of 

a nature to bring discredit upon the military service, or (c) 

"crimes and offenses not capital". General courts-martial have 

power to try "any other person" (other than those subject to 

27. Cf . FM 27-10, par. 27. 

28. This paragraph is limited in scope to the respective jurisdiction of courts-martial and military commissions for 

violations of the laws of war. The subject of military commissions generally is dealt with in "War Powers and Military J'wis ­ diction" by Colonel Edward H. Young, .-JAGD, JAGS Text No, 4, and 

"The Law of Martial Rule" by Lt. Col. Charles Fairman, JAGD. 

30. It must be remembered that some wars crimes are also common 

law crimes condemned by Articles of War 9 and 93, Cf, Dig, 

Op. JAG, 1912, p. 1071, last par. 
---------- -- 

tary tribunal. 31 However, the American forces in Germany during 

World War I established military comrnissibns and provost courts 

for the trial of inhabitants, No-members of the Amepican Army 

were tried by such courts; they weye brought before courtsmartial. 32 

Military comissions have by statute concurrent jurisdiction 

with courts-martial to try persons subject to military law. who 

relieve or aid the enemy,33 or are spies,34 or deal in captured 

or abandoned property. 35 

Military offenses by persons subject to mi1ita-u.y la'v .whi~:h 

by statute are made punishable by cowts-martial may not be tried 

by a military commission. 36 

31. AW 12', See also Colby, 17 Am., J, Int, Lo 109, 1x2, 

32 Colby, 23 Mich, L o Rev, 482, 505, The Ter~itoncy of Hawaii, 

under martfal law since the attack on Pearl Harbo~, es :. 

tablished provost courts. These courts tried military pe:rsom~e

for traffic violations with the appro.vtll of the cosnrftlanding gener

and commandant of the naval district, 

36, Dig. Op. JAG, 1912, p, 1069, last par, 
The Articles of War, especially Article of war 15, recognize 

the jurisdiction of military commissions to try violators of the 

laws of war.37 Thus, enemy perrions who entered the United States 

for the purpose of committing sabotage are unlawful belligerents 

triable by military commission. 38 

Prisoners of war and enemy civilian internees39 my be tried 

by. general courts-ma-rtial for offenses punishable by our military 

law so far as that law may.be applied to them. The authority of 

general courts-martial is found in Article of Var 12, which provides in substance that such courts shall have power to try -

any 

person who by the law of war is subject to trial by rnilit~ry tri,-

bunals. The Prisoner of Flay Convention of 1929, Article 45,40 

providing that "prisoners of war shall be subject to the' laws ++ ++ 

in force in the armies of the detaining power" subjects such 

persons to punishment for offenses which, on the part of our oun 

37. Apart from statute the military commission derives its au ­

tho.rity from the lzws of war, Dig, Op, JAG, 1912, p, 1066, 

last par, 

38, Ex parte Quirfn, U,S. Sup, Ct,, 87 Lo Ed, 3, 

39. The united States, Gemny, Italy, and Japan agreed through 

the Swiss government, after the outb'reak of the p:resent war, 

that civilian nationals of the respective belligerents shall be 

treated according to the Geneva Convention of 1929, relati.ve to 

the treatment of prisdners of war insofar as those provisions may 

be applied to civilians, See, also, p, 47, infra, 

40, FM 27..210,par, 118, 
military personnel, are punishable under the Articles of War, 

Regardless, then, of whether the punitive Articles of War extend 

by their own terms to prisoners bf war, they are by force of the 

Geneva Convention extended to them, However, some of the punitiv

Articles by their nature can have no application to a prisoner of 

war or a civilian internee assimilated to a prisoner of war, 'For 

example, such persons are incapable of deserting the service of 

the United States under kticle of War 58.41 

Though a military commission or provost court would have 

jurisdiction to try prfsoners of war or enemy civilian intel-nees 

for offenses committed by them,42 Articles 63 and.64 of the Genev

c on vent ion^^ require that prisoners of war be treated on an equal 

basis as members of oula armed forces wit'h respect to the forum, 

procedwe, and mode of review, These requirements make it advisable that the general court-martial be used in preference to 

the military commission or proiost court.44 ~risoners of war 

41. 	 SPJGW 1943,/3029, February 26, 1943, where it w-as held that a 

Gemn civilian internee who assaulted a comm.issioned of,- 

ficer of the United States wit'h a baseball bat may be charged 

with the offense of assault with intent to do bodily harm with a 

dangerous weapon under AW 93 before a general court.-martial, See 

also p. 94, infra. 

42. 	 JAG 250.4, June 12, 1918; Dig, Op, JAG, 1912-40, sec. 369(5)

43. 	 FM 27-10, pars, 136, 137. 

44. 	 SF'JGV 194313029, February 26, 19113; see also p, 99, et seq., 

infra . 
who, prior to being captured, commit an act in violation of the 
 

laws of war, e,g., by torturing or murdering a prisoner, may be 
 

tried before a court-martial or mil'ftary comission. Such persons 

are war criminals and are not entitled to the privileges accorded 

prisoners.of war. 45 
 

CHAPTER I1 
 

QUALIFICATIONS OF ARMED FORCES OF BELLIGERENTS 
 

8. General Divi-sion of &emy Population.-.-Broadly speaking, 

the peaceful inhabitants of the enemy are immune from warlike 
 

1
 attack so long as such inhabitants take no part in the fighting, 
 

Thus, the law of war separates the population of the enemy into 
 

two classes: the combatants and the peacerul inhabitants, 
 

I Illust~ative case -­

Wellington told-the inhabitants of southern France 
 

in 1814 that he would not allow them to play with impunity 
 

45, Cf SPJGW 1943/3029, Feb~ua~y 26, 1943; Colby, 23 Mich , Lo 

Rev. 482 at 487. 

Chapter I1 
 

1. Spaight, p. 35. "The principle has been more and more ac; 
 

knowledged that the unarmed citizen is to be spared in 
 

person, property, and honor as much as the exigencies of war 
 

will admit,'' GOO. 100,art. 22. 
 
- - 

bade them go Join the ranks of the French a.mies 5f 

they wished to fight .2 

9. Lawful Belligerents. --Civilians (with the exception of 

the levee en masse) who participate in the fighting are under the 

laws of war liable to punishment as war c~iminals.~Fighting is 

legitimate only for the combatant personnel of a country, Legitimate combatant personnel, on surrender OY captwe, are entitled to treatment as prisoners of way and incur no liability 

beyond detentiona4 Spaight has spoken of this as be "principle 

of combatant trade-unionism" which confines the right to participate in hostilities to the combatant personnel of a country, 5 

As a corollary to this rule, a soldier is entitled to know when 

he sees an enemy citizen and before.that citizen attacks him, 

whether that person is a lawful combatant or not. The Hague Regu

6
 lations classify la.wf'ul belligerents into thee groups: (I) the 

army, (2) the'milftia and volunteer corps (not part of the army, 

frequently called "irregulars" ) , and (3) levee en msse , 

2. Spaight, pa 350 

3. ~~27-10, pzr, 348. 

4. Hall, p. 349. 

5 Air Powe~, p, 360 

6. FM 27-10, par, go 
-

a. The Army. What forces constitute the regular army of 

a belligerent is a matter of municipal law. Thus, whether the 

militia or volunteer corps belong to the regular army is not a 

matter for international law but one of municipal lawO7 The ' 

quality of lawful belligerents attaches to all members of the 

regular army. The consensus seems, to be that an organization 

would hardly be recognized as a regular army unless it was uni8 
 

formed or wore permanent distinguishing marks on the dress. . 

Authorization by the belligerent government in some form is 
 

necessary in order that one be a member of the army of the belb 
 

ligerent, either by commission, enlistment,,conscription,or 
 

9
 otherwise. The uniform, "dog tags!' or discs, or identity cards 
 

are all evidences of state authorization. In World I, on 
 

a few occasions, aviators went up in their planes without-wearing 

their uniforms. Suppose such a flier was separated frpm his 
 

machine, would he be entitled to recognition as a lawful bellig- 
 

erent if captured by the enemy? Spaight indicates that such 
 

persons in the few recorded instances were treated as lawful 
 

7. Lauterpacht, p. 202. 
 

8. Spaight; p. 110; Hall, p. 554. 
 

9. SubJects of neutrals who are in the armed service of a belligerent are lawful combatants. Eiyde, Vol, IT, p. 295. 
10 


be established by their discs or identification cards. 

b. - Irregulars. The Hague Regulations provide that the 

quality of lawful combatants attaches to members of militia and 

voluntee; corps, even though they do not form pa~tof the regular 

army, provided: (1)they are under the command of a responsible 

person, (2) they possess some distinctive mark recognizable at a 

distance, (3) they carry arms openly, and (4) observe the laws an

customs of wm, The first condition does not require that such 

organization be connected with the general military comand or 

11 

be authorized by the belligerent government. Such forces may 

12 

be raised by local initiative. The requirement that "they be 

comanded by a person responsible for his subordinates" involves 

13 

the idea of authority and some organization. 

The requirement for a distinctive badge is necessary in orde

to maintain the distinction between combatants and peaceful inhabitants. The distinctive badge need not be a unifom; but it 

10. Air Power, p. 83, et seq. 

11.' Hall, pa 55Ge 

12. 	 Bordwell, p, 231. 

13. 	 Persons who commit hostile acts, individually and severally, 

belonging to no organizations, are war criminals. Spaight, 

p. 52; see also FM 27-10, pay. 348. 
must be irremovable so that it may not be assumed or dropped at 

14 

will. 

The condition respectiw the carrying of arms openly is 

imposed to prevent "making use of arms for active opposition and 

afterwards discarding or concealing them on the approach of the 

enemy, and will not 'as satisfied by carrying concealed weapons, 

su.ch as pistols, daggers, sword sticks, etc. tt l5 

Thus, it has been ruled that Home Guard are militia or 

volunteer corps under the Hague Regulations if they comply with 

16 

the four requirements set forth in Article 1of that treaty. 

Similarly, civilian guards at army depots may lawf-ully be used 

to repel an enemy force, such as paratroops, if they conform to 

the four conditions of the Hague Regulations respecting "ir~eg14. 	 Spaight, p . 57; a cap or removable badge .would not be suf ­ ffcient, Hall, p. 555. The distance that the sign must be 

visible is undetermined. This requirement will 'be satisfied 

certainly if this sign is easily distinguishable 'by the naked 

eye of ordinary people at a distance at which the form of an 

individual can be determined. U'.S,R,L.Wo, par, 330 

lo U.S.R.L,W,, par. 34. 

16, 	 It is desirable that they be furnished with certificates of 

identity and enrollment in Lheir opganization, JAG 324.5> 

March 9, 1942., 

17. 	SPJGbT, ~ u 3, l 1942; ~ cf. Winfield, p , 70, .who takes the 

position that if the Rome Guard has not yet 'been issued a 

uniform and wears no identifying eniblem except an amlet with 
--- 

A correspondent in the Daily Mail of June 19, 

1917, inquired whether, if a "Hun airman'' with engine 

trouble descended in England, it would be legitimate 

for a civilian to shoot him, A belligerent military 

airman, like every other member of a recognized belligerent force, is entitled to demand that he shall be 

subject to attack only by recognizable combatant personnel, He cannot be at the mel-cy of amateur hedgerow fighters. It is on the assumption that ci-vilians 

are, really civilians that they aye 'reliev-ed, as far as 

possi-ble, of liability to direct warl.i%e attack. Under 

domestic or national law, they my be doing no wrong 

in firing upon an eneIliy aiuman; under the laws of war 

they are committing an offense and are liable to seveye 

penalties if the turn of events places them in 18 situ­ ation in which they can be brought to account, 

Irregular troops, complying with the four conditions hel-e ­

tofore stated, may lawfully, even as in the case of regular army 

troops, engage in -guerrilla tactics .19 They may operate either 

17. (~ontd.) "Home Guard" stamped on it, this would be sufficie

"Theye is no reason to suppose that this /Rague @onvention7 

was an exhaustive classification of all lawfui combatants, TE~ 

broad general principle is that, where States X and Y are at war 

w'th each other, an X soldier is entitled to know when he sees a 

Y citizen, and before that citizen attacks him, whether he is a 

lawful combatant or not, So long as the Y citizen satisfies that 

condition * * * he is a lawful combatant, although he my not 

precisely fit into the Hague categories," 

18. Air Power, p, 363. 

19. Guerrilla tactics during a way ape carried out by small 

bodies of persons who make sur-p~ise attacks to the rear of 

the enemy for the purpose of dest~oying bridges, raa$lways, cornmunications, conv.oys, etc . The tactics are those of "fighting 

and running away". Spaight, p. 61, 
20 
 

of the enemy. 

-

c , Levee en Masse. When ordinary inhabitants of a nonoccupied territory rise at the approach of an invader, and either 

alone or in conjunction with the regular army, attempt to beat 

him off, are such persons to be considered as a levee en masse l 

or unlawful belligerents? The exception to the rule forbidding 

civilians f~om engaging in hostilities is the levee en masse. 

If, on the approach of the enemy, "the qabitants of a territo~

spontaneously take up arms to resist the invading troops without 

having time to organize themselves" in accordance with the rules 

applicable to militia and volunteer Corces, they are regarded as 

belligerents if they carry ams openly and respect the laws of 

war, It must be stressed that this concession is made to a 

21 massed rising; it 	is not applicable to a few inhabitants who 

22 

commit hostile acts. A levee en masse is sanctioned only in 

territory not yet invaded by the enemy; once the territol-y- is 

-

20. 	 Bordwell, p, 232. 

21. 	 Spaight, 	p. 52, "the character of belligerents results Tram 

the resistance of a respectable numberss, 

22. 	 Lawence, p. 494, states: "It was rightly considered that 

masses of a popular levy extending a considerable area of 

country would be sufficient evidence of their own hostile chm-. 

acter, even though no badges were worn by the indi-viduals of .wmm 

they were composed. " 
en masse is no longer legitimate. 23 A fortiori, if the territory 

24 
 

is occupied a levee en masse is no longer legitimate. It has 
 

been stated that a levee en masse cannot retain its combatant 
 

status if it acts on the offensive, i,e.; enters enemy soil; 
 

though to do so may be its only possible effective mode of de- 
 

25
 fense. 
 

-

d. Combatants and Noncombatants. The noncombatants dealt 

26 with in this al-ticle are members of the armed forces. Non­ , 

combatants are such whose function "is ancillary to that of the 
 

fighting men and do not themselves oppose the enemy, arms in 
 

27
 hand", 'Thus, "the personnel, medical, veterinary, legal, commissary, and pay corps, as well as chaplains" are noncombatants 

23. 	Lauterpacht, p. 205. 'Territory means suchpart of the bel- 
 

ligerent state as Is not yet invaded, There is no require- 

ment that each separate town or village must abstain from action 
 

until actually threatened. Spaight, po 58. 
 

24. 	Bordwell, p. 233; see FM 27-10, pars, 271-274, for distinctio

between invasion and occupation, 
 

25. Bordwell, p. 141; Spaight, p. 79, comments on this question . 

as follows: "This assumption is open to argument." 

26. 	Sometimes the term "noncombatant" is used to refer to peaceful inhabitants of a belligerent. . . 

27. 	Spaight, p. 58. 
pj

as combatants except so far as protected by the Geneva Convention 

for the amelioration of the sick and wounded. 29 

12. Guerrillas,--Guerrilla war exists where after the defeat and captwe of the main part of the enemy forces, t'he oc.­

cupation of the enemy territory, and the downfall of the enemy 

government, the routed remnant of the defeated army carry on the 

hostilities by guerrilla tactics. Technically, such persons are 

not lawful belligerents. Two reasons are given for this view: 

(1,)there are no longer the forces of two states in the field, 

and (2) there ris no longer in progress a contention between armed 

30 f ol-ces . 

Illustrative case.-­

On the sur~ender of Lee's and Johnston's armies 

and the collapse of the Confederacy, certain of the 

Confederate comanders were believed to be contemplating 

resistance by guerrilla tactics, The Federal au.kho~- 

' 	 ities refused, to -regard su.ch guerrilla bands as pos- 
 

sessing belligerent status, Grant wrote to Sheridan: 
 

"If Kirby Smith -/a Confederate general7 -
 holds out, 


28, 	Hyde, Vol, 11, p. 299, 

29. 	 Lawrence, p, 375. Chaplains, the medical, nur-sing and ad-. 

ministrative staff for the yelief of the sick and wounded 

enjoy special exemptions. See FM 27:.10, par, 179, et seq. Fop 

persons not directly attached to the amny who follow it, see FM 

27-10, par. 76bd30.. 	 Baker and Crocker, 	p, 17, citing Oppenheim; Lawence, p, 

493 0 
from or to report to, he and his men are not entitled 

to th consideration due to an acknowledged belligerent.11 31 

CHAPTER I11 
 

HOSTILITIES 
 

14-16. Commencement of Hostilities.--A failure by a party 
 

to the Hague Convention to observe its provisions in beginning 
 

hostilities without a declaration of war or an ultimatum with 
 

conditional declaration of war, does not make the hostflities 
 

subsequently conducted any the less subject to the Hague Con- 
 

1 
 

vent ions . 

The requirement that hostilities must not commence without 
 

previous and explicit warning, either in the form of a reasoned 
 

declaration of war or an ultimatum with a conditional declaration 

31. Spaight, p 61. Though the Federal Government refused to 
 

recognize the existence of the Confederate Government OY its 

final disappearance under municipal law, belligerent rights were 
 

exercised both by the Federal Government and, after its recog- 
 

nition, by the Confederacy, over the subject and property of 
 

other states, according to the rules of war, The Federal Govern- 

ment also treated the members of the armed forces of the Con- 
 

federacy as qualified belligerents. Moore, Vol. VII, p. 159: 
 

Chapter I11 
 
be taken by surprise, treachery, or bad faith. It also establish

that neutrals should not be held responsible for the performance 

, 	 of their duties of neutrality until they have received due notice 

of the existence of a state of war or are in fact,a'ware of its 

existence, The date of the beginning of the war may be impo~ta

in determining questions of international and domestic law. For 

example, the moment a state of war exists diplomatic relations 

are broken, commercial transactions cease to be valid between i 

enemy citizens, warships of each belligerent are entitled to 

visit and' search vessels of any flag on the high geas, etco Like

wise, the applicability of insurance contracts mAy depend on the 

2 

date of the beginning of war. Where there is a declaration of 

war which specifically. states the date of the beginning of war, 

3 the courts accept that datea In The Pe&o, the Supreme Court -.


accepted the date of April 21, 1898, as the beginning of the 

Spanish-American War, thfs date having been set retroactively bj 

Congress in its resolution of April 25, Mere there is a declaati ion which does not state a date for the beginning of the war, 

2, 	 Cf. West 8, Palmetto State Life Ins, Co,, Sup, Ct, (N~C,), 

25 S ,E. (2) 4759 where a life insu:rance policy lTlls.iLed in =. 

surer's liability if insured was engaged in military or. naval 

servi ce in time of war. 

3. 	 175 U.S. 354. 
4 
 

date of the approval of the declaration. Under the same cir- 
 

cumstances, courts tend to date the war from the first act of 
 

5
 hostilities for international law purposes. 
 

20-21, Treatment of Alien Enemies.--International usage 
 

has long recognized the right of a belligerent to restrain, de- 
 

tain, or expel alien enemies found in his territory at the out- 
 

6 
 

break of way. The rationale is that the legal allegiance to the 

enemy owed by the alien enemymay cause him to assist the enemy 
 

I 7
 if not restrained. 
 

American courts have held that the alien enemy has no rights 

8 
 

other than those which the sovereign ch.ooses to grant. In the 
 

~nited States, the Act of July 6, 1798,' places full control of 
 

enemy aliens in the hands of the President who, when war is de-


clared or invasion threatened, may proclaim "the manner and degre

4. West v. Palmetto State Life Ins. Co., Sup. Ct. (N.c,), 25 
 

S.E. (2)47, where the court adopted t'he date of the 'ap,- 
 

pl-oval of the joint resolution declaring war on Japan, December 
 

8, 1941; Hudson, 39 H.L,R. 1020 at 1021, 
 

5. The Boedes Lust, 5 C. Robinson 233. 

6. Hyde, Vol. 11, p. 226. 
 

7.- Garner, 12 Am. J, Int. L. 27. 
 

DeLacey v. United States, 249 F, 625 at 626. 
 

9. R .So 4067,amended by April 16, 1918,40 Stat. 531, 

8 
of the restraint". On February 19, 1942, the President promul­


gated Executive Order No. 9066 authorizing the Secretary of War 


and military commanders designated by him to prescribe military 


areas from which "any or all persons1'might be excluded and 


within which any or all persons might be subjected to restric­


tions. Under the authority thus obtained, the Comnder of the 


Western Defense Area issued a public proclamation on March 2, 


1942, and announced that he would proceed with the gradual evac­


i 

uation of all persons of Japanese ancestry including native born 

persons. Congress inferentially approved the entire evacuation 


procedure by the Act of March 21, 1942,1° which makes violation 


of any restrictive orders promulgated for a military area by the 

Secretary of War or a military cormnander a misdemeanor. In 


11 


Hirabayashi v. United States the constitutionality of a curfew 

imposed against citizens of Japanese ancestry in the Western 


Defense Command was upheld in the face of an objection that the 


order was unconstitutional because it discriminated against 


citizens of Japanese ancestry in violation of the Fifth Amend­


ment. The court ruled that such measwes were a legitimate ex­


12 
 ercise of the war powers of the National Government. 


lo. 	Public Law 503, 56 Stat. 173. 


11. 	No. 870,Oct. Term, 1942 (SUP. ~t.). 


12. 	"The war power of the national government is the power to 


wage war successfully. It extends to every matter and 

the forces of his home state, or assist them in any way, if they 

occupy a part of the country in which he resides. If.he does so

1

he is liable to be punished for treason after their withdrawal. 

26. Means of Injuring the Enemy Limited.--The principle 
 

that the right of injuring the enemy is not unlimited so far as 

concerns the means or instruments of destruction, resolves itsel

in practice into, two prohibited categories: (1)those which des

troy or disable by poisoning, (2) those which aggravate unneces-

14 
 sarily the sufferings of individuals. Except for such means a

are expressly prohibited by conventional or customary law, a11 
 

means of killing and wounding are lawful whether the instrument 

13
 is designed for use against a single pepson or large g~oups., 
 

12, (~ontd,) activity so related to w&r as substantially to af

fect its conduct md progress * * * The adoption by Government, in the c~isis of war and of threatened invasion, of lneasur

for the public safety based upon the recognition of facts and 

circumstances which indicate that a group of one national extra@

tion may menace the safety more than others, is not wholly beyond 

the limits of the Constitution and is not to be condemned merely 

because in other and in most circumstances racial distinctions 

are irrelevant." WfPabByasH~T v, United States, supra, 

13. Lauterpacht, p, 248. 
 

14. Air Power, p. 161. 
 

lo Spaight, p. 77, "It is certain that the employment of a 
 

projectile capable of destroying an aymy at a blow would be 

legitimate under the actual principles of the law of war," The 
 

use of flame-throwers, etc,, is legitimate. 
 
The weapons of war that may be used legitimately are not confined 

to those which are openly employed; thus mines, booby traps and 
 

16 
 pits are permissible. 
 

Other modes of warfare are prohibited because of risk of 
 

injury to the peaceful population or neutrals, e.g,, scattering 

of loose mines on the high seas, or because of treachery, e.g., 
 

assassination. 
 

Illustrative case. -­

- In the Russo-Japanese War, the Russians allegedly 

stretched live electric wire across one of their positions as a result of whfch an entire line of Japanese 

infan-t;ry assaulting the position was killed. This according to Spaight is legitimate. 17 

27. Hague Declaration No, XIY of October 18, 1907,--This 
 

Convention with respect to discharging explosives from balloons 
 

has not been adhered to by any of the powers in the present war 
 

18 
 

and was expressly denounced by the United States. 
 

28-29. Poisons, Gases and Chemicals, .-The Conventions with 

respect to the use of poison gas are as follows: 
 

-

a. Declaration of The Hague, 1899,by which "the contracting Powers agree to abstain from the use of projectiles the sole 

16. Baker and Crocker, p. 113, citing Ralleck, 
 

17. Spaight, p. 77. 
 

18. See Sec. I, Cir, 136, WD, May 7, 1942. 
 
gasesr1.ly It has been doubted whether this Convention forbids 

the emission of gas by other means than projectiles or by pro- 
 

jectiles which produce damage through their explosive action 
 

20 
 

while at the same time emitting gases. 
 

b. Article 5 of the Washington Treaty of 1922 for the 
 -

protection'of the lives of neutrals and noncombatants at sea in 
 

time of way and to prevent "the use in war of asphyxiating, 
 

poisonous and other gases, and all analogous liquids, materials 
 

21 
 

or devices". This treaty is not in force. 
 

-

c. The Geneva Protocol of 1925 contains a similar prohibition to that of the Washington Treaty and it expressly prohibits 
 

22 
 

bacteriological warfa~e, 
 

Some writers have contended that the use of pyison gas is 
 

forbidden by the rule of customary law which prohibits the use 
 

of poison.23 Article 23(a)24 prohibiting the employment of 
 

19. 	The United States is not a party to this Convention. 
 

20. 	Garner, Vol. I,p, 278. 
 

21. 	France failed to ratify this treaty because of its-pro- 
 

visions relating to submarines, 
 

22. 	The Unfted States has not ratified this treaty, 
 

23. 	Walker, Vol. 11, p. 140; Lauterpacht, po 273. 
 

24. 	FM 27-10, par. 28. 
 
"poison or poisoned" weapons has been the subject of conflicting 

interpretations. On the one hand it has been suggested that it 
 

25 
 interdicts only pofsoned weapons and contrariwise that it cover

not merely poisoned arms, but food poisoning, water poisoning, 
 

26 
 

and all poison fumes or gas discharged in the air. Poisoned 
 

gases, it has been argued, like chlorine and phosgene, often 
 

cause a lingering and painful death or illness and are therefore 

obnoxious also to Article 23 (e) 27 forbidding the use of materials

etc,, of a nature causing unnecessary injury. Whether the use 
 

of gas also offends against Article 23 (e) may depend on the natur

of the gas used. It may be difficult to determine when a weapon 

28 
 

of war becomes needlessly cruel. 
 

In official statements, President Roosevelt has condemned 
 

"the use of poisonous or noxious gases" and has warned the Axis 
 

29 that its use by them will bring prompt retaliation in kind, 
 

25. Garner, Vol, I, p. 277. 
 

26. Lawrence, p. 531. 
 

27. FM 27-10,par. 34. 
 

28. blalker, Vol. 11, p . 140, Cf . The Washington Treaty and 

Geneva Protocol, condemn ."other gases and all analogous 

liquids, materials or devices", thus prohibiting not only lethal 

but also non-toxic or anaesthetic gases, Air Power, p. 164. 

29. Time, June 21, 1943; Facts on File, 1942, i80 H. r 
the enemy is not forbidden, Similarily, contamination of water 
 

by methods which are apparent, such as depositing carcasses of 
 

30
 animals, is permissible. Non-obvious poisoning of the water 
 

supply is forbidden by this Convention. Is it lawful to poison 
 

drinking water if notice is posted informing the enemy that the 
 

31


water has been poisoned? To poison all water supplies, whether 

with or without notice, deprives not only the enemy forces but th

civilian population of the necessities of life and is illegitima

If no civilians can b'e affected by the poisoning and notice is 
 

posted, Garner believes that the practice would be unobjectionabl

in that it would be tantamount to a diversion of the water sup- 
 

32 
 

P~Y
 0 

Bacteriological warfxre, i,e., infecting the enemy with germ

or bacteria, is forbiddec, In addition to Article 23(a) of the 
 

Hague Regulations, the following reasons are suggested in suppo~

of such rule: (I) if ci.v.ilians be affected, war is being made on 

30. 	Spaight, p, 84. 
 

31. 	The German Commander in Southwest Africa attempted to Justif

such a practice in World FTar I. See Lawrence, p, 542, 
 

32, Garner, Vol. I,p. 291. This view overlooks the unqualified 

prohibition of the Hague Convention against the use of poiso

Lawrence, p. 542. 
 
the peaceful population, (

) y y 

be affected, material is being employed that causes superfluous 
 

3 3 
 injury under Article 23 (e) . 

30-31. Treachery and Assassination.--"It is the essence of 

treachery that the offender assumes a false character by which he 

deceives his enemy and thereby is able to effect a hostile act, 

which, had he come under his true colours, he could not have 

34 done." A person who crosses into the enemy line in disguise 

and kills an enemy general is an assassin whereas an individual 

who comes as an open enemy in uniform and does the same act is 

not.35 It is treachery for a sgldier to throw up his hands in 

surrender and then take up his rifle and shoot his captor. 36 A 

soldier who pretends to be diaabled or dead is guilty of treacher

37 if he then uses his rifle. Spaight considers the following two 

cases as illegitimake strategems: (1)that in which a sol die^ 

33. FM 27-10, par. 34; see Lamence, p, 542. 

34. Spaight, p. 87. In a broad sense the difference between 

treachery and legitimate ruses and stratagems is that the 

latter involve no breach of faith. Phillipson, p. 206. 

35. Lawrence, p. 541. 

36. Spaight, p . 87. 

37. Baty and Morgan, p. 193. 
troops in their advance take shelter behind a screen of civilians 

driven before them. 38 

Illustrative case. -­

A press dispatch from China stated that the Japanese 

had broadcast an offer of reward of 10,000 yen for the 

capture "dead or alive" of any member of the United States 

Medium Bombardment Group based in China. If this report 

be true, it is contrary to international law. The offering of a rewmd for an enemy dead or alive is forbidden by law39 and especially by Article 23 (b) of the 

Hague Regulations to which Japan is a part .. Such a 

reward is an invitation to assassination. 46 

32-33. Quarter.--When an enemy combatant ceases to fight-an

asks for mercy, he is soliciting quarter; when his life is spared 

an6 he is made prisoner, quarter is granted to himO4l Thus a 

combatant who ceases to fight and is willing to be captured may 

not be killed or Similarly, combatants disabled by 

sickneas or wounds may not be killed .43 Circumstances may exist 

where the giving of quarter is impracticable, for example; when 

38. Air Power, p. 146. 

39. See FM 27-10? par. 31. 

40. SPJGW 194316886, May 20, 

41. Lawrence, p. 376. 

42. Lauterpacht, p. 270. 

43. Lauterpacht, p. 270. 
it is impossible to distinguish between thos'e who wish to surrender and those who continue to fight .44 Military nebessi ty 

will not justify a declakation that no quarter will be given. 45 

However, quarter may be refused by way of reprisal in kind for 

46 the refusal of quarter by the enemy. 

Illustrative case.-­

An enemy airman whose engine has stalled or his 

machine gun jammed, indicates that he desires to surrender. MuQt 

-the opposi aimn refrain from shooting 

the enemy down? Spaighteei answers in the negative 

stating that no~.mally it'is hnpossible to accept surrender in the air. 

An enemy whose aircraft has landed on territory held by the 

opponent may not be attacked if he does not continue to resist 

48 

or try to escape for he will be captured in any event. He may 

44. Spaight, p, 91, When the enemy continues to resist until 

the last moment and the granting of quarter would endanger 

the success of the attacking element, quarter may be refused. 

Phillipson, p. 204, 

45. Bordwell, p. 283, states: "The need of this provision 

against the declaration of no quarter is even greater than 

against the refusal of quarter, as instances of threats to gfve 

no quarter have been more numberous than the actual refusal to 

give it." 

46. GOO. 100, art. 61; Lauterpacht, p. 271. 

47. Air Power, p . 117, et seq. 

48. Air Power, p. l25. 
be attacked if he continues to resist .49 It is not forbidden to 

fire on an enemy whose machine has crashed on enemy ground. 50 

enemy personnel descending in parachutes from aircraft which 

is dfsabled or out of'controlmay not on general principle be 

shot if the descent is over ground held by forces hostile to the 

parachutist .51 No established principle or clearly defined usage 

exists with respect to attack on an aviator who is descending to 

his own ground for the purpose of escaping destru~tion. 52 

34. Employment of Amns, etc., Causing Unnecessary Injury,-- 

The Declaration of St. Petersburg, 1868, prohibited the use of 

any projectile of a weight below 400 grames (about 14 oz ,) , 

which is eithey explosive or charged wPth fulmination or inflammable substances. The Hague Declaration of 1899 prohibited "the 

use of bullets which expand or flatten easily in the human body, 

49. Air Power, p. 126, Resistance continues if the ai'rman tries 

to burn his airpl%ne. 

50, Air Power, p. 124. 

1 Air Power, p. 140. Spaight says: "one 'cannot say that 

there is any definite rule of war upon the point, but it 

may at least be affirmed that to attack a parachutist in circumstances in which he fs certain in any case to be captured would 

be contrary to the principles of international law." 

2 Air Power, p . 143. Cf . Art. 20, draft code of 193 with 

respect to air warfare: "When an aircraft has been disabled 

the occupants, when endeavoring to escape by means of pzrachute, 

must not be attacked in the course of descent," 
such as bullets with a hard envelope which does not entirely cov

the core, or is pierced with incisions". Article 23(e) of the 

Hague Rules, 1907,~~ prohibiting the employment of "arms, projectiles, or material calculated to c.ause unne@essary suffering" 

is an enactment in more general terms of the Declaration of St. 

PetersburgO5' Though the United States is not a party to either 

the Declaration of 1868 or 1899, these declarations are accepted 

as customary law independent of the treaty provisions .55 During 

World FJw I, Gemy protested against the use of shotguns by 

the American troops baaed on Article 23(e)56 and ths complaint 

was repudiated by the United States. 57 

bticle 23(e) of the Hague Regulations of 1907 does not 

pyohibit the use of explosives contained in artillery shells or 

hand wenades. The prohibition against explosive and expanding 

bullets refers to small-arms munf tion.58 

53. 	 BPI 27-10, par. 34. 

54. 	 Phillipson, p, 199= 

55. 	 Air- Power, p . 169; cf, SPJGW 1943/3186, The practf ce of na

tions indicates that all unJacketed -lead bullets are illegal

56. 	 FM 27-10, par, 34. 

57. 	 Gamey,. Vol. I, p, 270. However, 'a shotgun shell having at 

its muzzle end a single slug scored on the sides, which, -wh

fi-x-ed into a soft,tmget stmilar to human flesh, causes an exit 

'wound as big as a saucer, would be violative of hticle 23(e) of 

the Hague Regulations, 

58. 	 Air Power, p , 168. 
36. 

jpp

Against Their Own Country.ag he prohibition against compelling 

enemy subjects to take part in "operations of war" directed again

their .own country unquestionably applies to the population of oc- 

cupied territory.60 The terms of this article are broad enough 
 

to apply to enemy subjects found in a belligerent's own ter- 
 

ritoiy.61 The acceptance of voluntary service on the part of 
 

the enemy subject is not Enemy nationals cannot 
 

be compelled to perform military service against their own country 

even if they have been in the service of the invader before the 
 

outbreak of war .63 The line between work permitted and work 
 

59. See p. 80, infra, for additional information. 
 

60. Holland, p. 44,where it is stated that'Article 23, last 
 

par., was substituted for Article 44 of Hague Regulations 

of 1899; the latter expressly applied to the "population of occupied territoryvf . 

61. The fact that it does not appear in the body of the Con- 
 

vention but at the end of an mticle dealing with prohibited 

methods of conducting hostilities casts doubt on this view. Cf. 

Porter v. Freudenburg (1915),1 K.B. 857. 

62. Spaight, p. 144. 
 

63. Holland, p, 44. An enemy alien who is a member of the Enlisted Reserve Corps in the Amy of the United States cannot be compelled to serve in the armed forces of the United States 

against his own country. Par. 7e (2)(b)2, AR 615-.500,Sept. 1, 

1942, applies equally to enemy aiiens, members of the Enlfsted 

Reserve Corps, who are being called to active duty, and that such 

alfens who object in writing to service in the army may not be 

compelled to serve. SPJGId 1943/10738, July 28, 
-- 

forbidden may be difficult to draw. A liberal construction 
 

would prohibit all acts directly and distinctly in aid of milita

In this view it would seem that the digging of 
 

trenches, construction of fortifications even at a distance from 

the front, the repairing of arms, making of munitions, the build

ing of a road to be used exclusively for military purposes, and 
 

the construction of gun emplacements would be prohibited.65 How

l 

ever, a belligerent may legitimately demand that the enemy na- 
 

tionals tend their wounded, bury their dead, repair and build 
 

66
 roads and bridges of general utility, ,Generally, the occupy- 

ing army may utilize the services of enemy nationals for all its 

varied need except "operations of war". 67 
 

37-44. Stratagems.--"War is a conflfct of wits quite as 
 

much as a conflict of arms. "68 Ruses are permissible provided 
 

they do not involve the violation of any express or implied 
 

64. Phillipson, p. 197; Spaight, p. 152. Cf. Lauterpacht, p, 

345, who states that the practice of belligerents has been 
 

to distinguish between military operations and military prepara- 

-

tions and that such work as const~uction of military roads, 

fortifications and the like behind the front is not fu~bidden 

in preparation for military operations. 

65. Cf. Phillipson, p. 197 

66. Phillipson, p. 197. 1f' the community benefits generally 
 

from the construction, the fact that the military also 
 

benefits would not be violative of this article. 
 

Spaight, p. 

68. Lawrence, p. 538. 
 
against treachery6' or the improper use of the national flag 

of the enemy, etc. 70 

Article 24 pemits reconnaissance work and spying. For example, it is permissible for a belligerent to send a soldier 

disguised as a peasant into the enemy lines for the purpose of 

acquiring information, 71 Bribery of enemy commanders, high of ­

ficials of government, persuading enemy soldiers or the civilian 

population of the enemy to desertion or insurrection are permissible stratagems when ,done openly by combatants in uniform. 72 

The Hague Regulations prohibit the improper use of the 

enemyPs national flag and uniforms. Practice and law agree 

that these ought not to be used by a belligerent during battle. 73 

Whether the enemy flag or uniform may be used for facilitating 

an approach or withdrawal is a matter of dispute. The American 

69. 	 FM 27-10, par. 30, 

70. 	 FM 27-10, pars. 41-44; see p. 142, infra, for further dtscussf on. 

71. 	 A spy who is taken in delicto by the enemy may be punished. 

Spaight, p. 210. 

72. 	 Air Power, pp . 292, 308, Howevep, such acts if engaged in 

by a person in disguise, are illegitimate and the perpetPator 

is liable to be put to death as a war traitor. SPJGW 1943/12516, 

Sept. 15. 

73. 	 Lauterpacht, p. 335. 
view,74 and that of many writers on international law, is that 
 

such use is permissible if the flag or uniform be discarded be- 

foreo the opening of fire.75 Soldiers lacking clothing who wear 

captured enemy clothes must place some distinctive or distinguis

ing mark in a conspicuous place, otherwise they may lose the 
 

privileges of lawful combatants. 76
 

Illustrative case.-­

It was reported in the New York Times, May 14, 

1940,that Germany in invading Belgium dropped parachutists dressed in Belgian unlforms behind the Belgian 

lines: If such parachutists engaged in combat while 

so dressed they would not be entitled to treatment as 
 

lawful belligerents .77 
 

A flag~of truce and the Red Cross of the Geneva Convention 

may not be used for a stratagem.78 It is the common understand- 

ing that these signs shall be used for appropriate purposes ' 

only.79 

74. FM 27-10,par, 43. 
 

75. See 35 Am, J. Int. Lo 435 for extended discussion, 
 

76. Lawrence, p. 539. 
 

77. Cf. FM 27-10, par. 347. 
 

78. Lawrence, p. 538; see FM 27-10, pars. 42, 44. 

79. Cf. Spaight, p . 153 
ment, by any means whatever,81 of undefended places is prohibited 

82
 by the Hague Regulations. An undefended place is not synony- 


mous with unfortified;83 for example, an unfortified place may 
 

be defended. A place occupied by combatant troops or through 
 

which such troops are passing84 or in which the inhabitants take 

up arms to defend themselves is a defended place.85 A fortified 

86
 place is presumptively defended. However, a fortified town 
 

which makes no attempt to defend itself against occupation is 
 

immune from b~mbardrnent.~~ 
 The prohibition against bombarding 

such a place, i.e., an undefended town, is based on the assumptio

that an army could occupy it without firing a shot,88. However, 

80. By assault is meant a surprise attack. Holland, p. 46. 
 

81. This was intended to include discharge of projectiles from 
 

balloons and,airplanesas well as by artillery, Air Powe~, 

P. 196. 
 

82. Undefended is not defined by the regulation, 
 

83. Lauterpacht, p. 325. 
 

84. Spaight, p. 159. 

'85. Hyde, Vol. 11, p. 305. 

86. Cf, FM 27-10, par. 47; Spaight, p, 159, "No one can tell 

today whether a town is seriously fortified or not." 

87. Garner, Vol. I,p. 420, et seq.; Lawrence, p. 523. 
 

88. Westlake, Part 11, p. 315, states,"The price of immunity 

from bombardment is that the place shall be left open for 

the enemy to enter." 
where a military force is prevented from ente~ing by fire from 

a nearby fortress or defended place, the town itself cannot be 

calied an undefended place .89 Similarly, if the military objective cannot be reached by any other means, bombardment of an 

undefended place is permissible, If an undefended town offers 

the defender a shelter to fall back on should a defended place 

prove untenable, the undefended town may be bombed on the plea 

of military necessity. A controversial point is whethei. towns 

are defended simply because they possess' ammunition, war materie

, depots, etc. Some miters assert that if no serious effort is 

made to safeguard them from attack, such places would not be 

transformed into defended places. 91 Spaight contends that milit

necessity wlll justify bombardment of undefended towns for the 

purpose of destroying milita~y stores, factol-ies, etc. 92 All be

ligerents during World Var I bombarded such places from the air, 

89. Spaight, p . 161. 

90. Spaight, p. 160. 

91. Wde, Vol. 11, p. 303; Ga~ner, Vol. I, p, 422, 

92. Spaight, p 170. 

93. Railway stations, barracks, munition and chemicalwor;ks, 

etc., were considered as military objectives. Air Power, 

pa 198, et seq.; Lauterpacht, p, 325, It is clear that.an othey

wise undefended place loses that status if military airports are 

located in or near such place, 
In land and naval bombardment of defended places no legal 

duty exists to restrict bombardment to fortifications only; on 

the contrary, destruction of public and private buildings is 

considered-lawful as one of the means of impressing upon the 

authorities the advisability of surrender. 94 In such cases, the 

commander must so far as possible spare buildings devoted to religion, art, science and charity, hospitals and places where the 

sick and'wounded are collected, provided they are not used at the 

same time for military p&poses .% A belligerent s right to bomb 

legitimate military targets cannot be prejudiced by establishing 

hospitals, etc., in dangerous proximity to such targets. If 

damage is incidentally caused to such a hospital it is chargeable 

to the belligerent who located it in a position of danger. 96 TO 

enable the attacking force to spare such bufldings, signs must be 

placed to indicate their presence and the besieger notifisd beforehand.97 

94. Lauterpacht, p. 328; cf . Air Power, p . 206.. Some writers 

insist that deliberate bombardment of residential quarters 

is illegal. See Hall, p. 575, 

Article 27 of the Hague Regulations, FM 27-10, par. 58, 

refers to civilian hospitals and not military hospitals. 

For military hospitals.see p. 140, infra. 

96. Spaight, p. 182. 

97. FM 27-10, para. 58, 59. 
problems with respect to bombardment. Few positive and specific 

rules can be laid down with regard to air hostilities. Certain 

general principles of land waGf are may, however, be applied, 98 

Deliberate or reckless bombing of noncombatants is forbidden as 

is bombardment for terrorizing the civilian population. 99 The 

laws of humanity are applicable to air war, looDestruction as 

an end in itself or for the sole purpose of inflicting monetary 

loss on the enemy is forbidden. 101 

b. Seizure and Destruction of Property During Opera- . -

tions; Devastation. Article 23 (g)102 and Article 461°3 when 

98. Cf . Lauterpacht, p. 414. 

99.- Lauterpacht, p. 414; Phillipson, p. 177. The presence of 

civilians will not protect military objectives from attack 

merely because it is impossible to bombard them without indirectl

injuring civilians, Lauterpacht, p, 415, 

100. See FM 27-10, par, 4b. Cf , Air Power, p . 195, et seq., es­ pecially at p. 208, where the author in contending that law 

as well as practice in World War I permitted air bombing of 

military objectives whether in a defended place or not, states 

"that in some cases * * * the exercise by the attacking belligerent of his rightwould result in damage to the civilian population altogether disproportionate to the military results achieved

In such cases, humanity demands that the belligerent should refrain from attack." 

101. Spaight, p. 131. 

102. FM 27-10, par. 313. 

103. FM 27-10> par. 323. This latter article though included in 

the section of the regulations dealing with occupation ap-A 

plies where there is as yet no occupation, Spaight, p, 111, 
erty, public or private, unless imperatively demanded by the 
 

necessities of war. All destruction to or seizure of enemy prop- 

erty, public or private, for the purpose of offense or defense 
 

is legitimate whether in preparation for battle or during bat- 
 

tle. lo4 The term "necessities of war" or military necessity is 
 

an elastic term and is ultimately for the determination of the 
 

commander in the field.lo5 Destruction as an end in itself is 
 

106 
 ' clearly outlawed. There must be some reasonably close connection.between the seizwe or destruction of property and the 

overcoming of the enemy's army. 107 

Illustrative case.-- 

The burning of public buildings in Washington by 

the British in 1814 has been condemned as contrary to 
 

international law ,lo8 
 

The Hague Convention has made a distinction between the right 

of a belligerent to seize and destroy enemy property as an inci-


dent to operation^, movements, or combat of the army and the 
 

104. Lauterpacht, p, 321. 
 

106. FM 27-10, par. 324; Spaight, p. 111, et seq~ 
 

107. Spaight, p. 112; FM 27-10, par. 324, 
 

108.Spaight, p. 112; see also Garner, Vol. I, p. 323; Lauter- 


pacht, p. 321, 


105 ., Lawrence, p . 536.
limited right of an army of occupation to make use of enemy prop

erty as an incident to the administration of enemy country. 109 

In the former case, military necessity will excuse the seizure 

or destruction of public or private property11o such as railways

communications, war materiel, munitions factories, supplies and 

other property of direct military value to the enemy, shilarly, non-military property may be seized or destroyed for the 

purposes of defense or attack. '12 Thus, factories, private home

or even a church, may be seized or destroyed if necessary for 

military operations. 113 
 

Military necessity may excuse the destruction of entire 
 

towns and cities. General Sherman in the Civil War burned Atlan

logo See FM 27-10, pars. 324, 325; Fenwick, p. 483. 
 

110. Destruction of private dwellings in the line of fire is 
 

common. 
 

111,Spaight, p. 113. 
 

112. Lauterpaeht, p. 321; Spaight, pa 114, The only- exemption 
 

military necessity has made is the protection given by the 

Geneva Convention of 1959 to sanitarx and medical .units. FM 27-

10,par, 179; see p. 132, infra, for exceptional caseo 
 

113. Lawrence, p. 535 Respect for private property does not 
 

interfere with the right of a belligerent to appropriate 
 

private property for temporary military use. FM 27-.lo, par, 325

The protection given to educational and religious institutions 'b

Article 56, FM 27-10, par. 318, covers the period of military 
 

occupation and does not prevent destruction or seizure d-ming 
 

milrtary operations. 
 
not afford to leave it standing in his rear to be seized by the 
 

enemy. The inhabitants were driven out of the city and it was 
 

burned to the ground. 'I4 A retreating force may destroy barracks

arms, ammunition, factories and foundries, which would, if not 
 

rendered useless, supply the enemy with the means of carrying on 

war. However, it has been denied that such a force may destro

provisions in the possession of private enemy inhabitants in orde

to prevent the enemy from using them in the future. The popu- 

lation of an area may devastate its own land in order to -repel an 

enemy. International law does not forbid such destruction. 117 
 

61. Pillage.--See paragraph 329. 
 

62-64. Unanchored Submarine Mines.--In World War I, the 
 

Germans scattered unanchored mines over the high seas indiscrimi- 

nately. In the present war, Germany used aircraft for the 
 

purpose of layfng unanchored mines. Great Britain answered both 

114. Spaight, p. 130. 
 

115. Spaight, p. 132. 
 

116. Lauterpacht, p. 322; contra, Spaight, p. 138. 
 

117. For example, Dutch who cut their dykes and let in the sea 
 

as a defense against the Spaniards. Lawrence, p. 537. 
 

118. Garner, Vol. I, p. 329, et seq. 
 
of these violations by reprisals in establishing war zones and 

119 permanent mine .fields.

CHAPTER IV 


PRISONERS OF WAR 


70-72; 76-77 6 Who May Become Prisoners of War. --The Con1
 vention of 1929 relating to the treatment of prisoners of war 

has been signed by the United States, Germany and ~a~an.~ All -

categories of persons who are entitled to be treated as prisoner

of war are not enumerated in the Hague Convention. The Convention does specify certain persons who are prisoners of warO3 

Civilian internees. Civilian aliens found in a belligey4
 ent's own territory at the outbreak of war may be interned. 

Such persons are, under the American md English practice as 

119. Lauterpacht, p . 367. 

Chapter IV 

1. Referred to hereafter in this chapter aa the Convention. 

2. All of the major powers at war today have ratified or adhered to the Convention except Japan and Russia. Japan, 

though failing to ratify this Convention, has through the Swiss 

government agreed with the United States to apply its provisions 

on a reciprocal basis. 

See F~I27-10, pars, 72, 76. 

4. See p. 24, supra. 

3 
treated as prisoners of warm6 The United State? and the enemy 

governments, namely, Germany, Italy and Japan have agreed through 

the Swiss government to treat interned civilian alien enemies, on 

a reciprocal basis, at least as favorably as prisoners of war. 7 

The internees receive food, lodging, clothing and medical care. 

They may not be compelled to do work other than the care of the 

camp without their consent. If they elect to work they receive 

8
 the same pay as prisoners of war. 
 

When a belligerent invades enemy territory, civilian enemies 

generally are not subject to being interned or captured.9 Under 

the same circumstances, civilians who assist the enemy as drivers 

or laborers in the construction of fortifications or as clerks in 

5 . 	 JAG 014.311, June 28, 1938; SFJGW 1943/8113, June 16. 

6. 	 "Every individual who is deprived of his liberty not for a 
 

crime, but for mtlitary peasons, has a claim to be treated 
 

as a prisoner of war." Lauterpacht, p, 299; cf, FM 27-10, par. 
 

70. 	See for extended discussion, 37 Am. J. Int, L. 30, 
 

7. See for details, United States Dept, of State Bull., Vol. VI

No. 152, p. 446,May 23, 1942. 
 

8. 	 37 Am. J, Int. L. 30. 
 

9. Cf. FM 27-10, par. 299, enjoipiw respect for "family honor 
 

and rights, the lives of persons", etc. See also Spaight, 
 

p. 306. 
- - 

an army installation should not be made prisoners of war.lo Thi

principle is subject to the qualification that the invader may 

take as prisoners of war all civilians who are separated from 

other civilians by their importance in the enemy state1' or by 

12 their usefulness to it. 

Civilians following the army. There are persons who "follow 

an army without directly belonging" to it and Article 8113 mentions "correspondents, newspaper reporters, sutlers, contractors"

However, the persons enumerated in the article are not a complete 

list but only examples.14 Spaight lists the following as falling 

within this article: persons not commissioned or enlisted, but 

employed permanently by an army as pay-clerks, telegraph operator

engine drivers, or, generally, in' any civilian capacity with an 

army in the field and such as are not officially employed by an 

10. Lauterpacht, p. 278. The enemy may detain them temporarily, 

requisition their services, or'release them, but they are no

to be detained as prisoners of warc Edmonds and Oppenheim, par, 

58, footnote (a), The case of civilians accompanying the army in 

the field is dealt with hereafter, 

11. FM 27-10, par. 76e, f. 

12. Hall, p. 425; cf. FM 27-10, par. 7%. 

13. FM 27-10, par, 76b. ­

14. Lawrence, p. 349, 
pondents, sutlers, or contractors .15 The difference between an 
 

ordinary prisoner of war and a civilian who follows the armed 
 

forces without directly belonging to it is that the latter, when 
 

detained, is held Tor military reasons other than weakening the 
 

enemy, namely, immediate release may be inconvenient or return 
 

to the camp of the enemy may result in the disclosure of infor- 
 

mation.16 By reason of this difference such persons should not 
 

be subject to forced labor as is true in the case of ordinary 
 

prisoners of war, 17 
 

Civilian employees of an aircraft company serving overseas 
 

with the army air fomes and supervising air mechanics are en- 
 

titled to be treated as prisoners of war if in possession of a ce

tif icate .18 Similarly, civil servants of a belligerent governmen

1 Spaight, p. 304. 
 

6 Bordwell, p. 245; Spaight, p. 310, 
 

17. Spaight, p 310; cf . SPJGW 194317418, June 10, where it was 

held that A.~ticles 21 and 22 (FM 27-.lO, pars. 94, 95) of the 

Geneva Convention relating to "assirniles" permit the tlaeatment 
 

and classification of civilians attached to the armed forces in 
 

the field, performing work of a character equivalent to that of 
 

officers, as officers; that the list of classifications should 
 

be communicated to the enemy. 
 

18. SPJGW 1943/7809, June 9; cf. Cir. 33, WD, Jan. 30, 1943, 
 

which provides that individuals included in FM 27-10, par, 

76b, namely civilians attached to the armed forces, will be pro. 

vided with a certificate, by the local commanding officer, identifying them as noncombatants, See also sec, 111, Cir, 9, WD, 

Jan. 14, 1942. 
accompanying the armed forces into the field, such as Treasury 

Department agents, would be entitled to be treated as prisoners 

of war.19 A certificate of identification is necessary to preve

the possibility of a combatant escaping in the guise of a noncom

batantOe0 The failure of such a civilian to produce a certifica

will not deprive him of the right to be treated with humanity if 

he be detained. 21 It must be remembered that the civilian is a 

noncombatant and if he comits acts of violence cannot claim to 

22 be treated as a prisoner of war when captwed. 

Armed forces. The combatant members of a belligerent's 

ad3 as well as the noncombatant members of the army2' are entitled to be treated as prisoners of war when captured, 

Members of the volunteer corps25 and of a levee en masse26 a

entitled to be treated as prisoners of war, The Geneva Conventio

19. 	SPJGW 1943/73359 May 26; Hyde, Val, 11,p. 345, 

20. 	 Bordwell, p 245. 

21. 	 Lawrence, p. 350. e 
 

' 22. 	 Qde, 	 Vol, 11, p. ,344; Spaight, p, 38; SPJG 383.6, Mwch 

21, 1942. 

23. 	 See p. 14, supra. 

24. 	 See p. 20, supra. \ 

25. 	 See p. 16, supra. 

26. 	 See p. 19, supra, 
- -- - 

tions of capture in such cases may render necessary departures 

from the Convention which must cease on arrival at a prisonersP 

27 

camp 0 

Subjects of neutral states. A citizen of a neutral state 

who is a member of the armed forces of a belligerent, a member .. 

of a volunteer corps, 0r.a civilian attached to the army in the 

field28 is entitled to treatment as a prisoner of war. 29 

73-75. Personal Safeguards Accorded Prisoners of War.--The 

obligation to grant treatment accorded prisoners of war to enemy 

individuals does not begin until resistance has ended. 30 

Prisoners of war are in the power of the enemy state and not 

the individuals or troops who capture them, Thus, the primary 

responsibility for the proper treatment of prisoners of war is 

upon the state. 

27. Air Power, p. 312, 

28. SPJGW 1943/9501, July 2. 

29: Cf. Spaight, p. 4970 A subject of a belligerent found serv- 

ing in the enemy forces is guilty of treason and, according 

to Edmonds and Oppenheim, par. 36, "cannot be regarded as enemies 

in the military sense of the term and cannot claim the privileges 

of the members of the armed forces of the enemy". FM 27-10, pay. 

30. F,lory, p, 39. The rule is the same for the sick and wounded

that is to say, the sick and wounded have ceased to resist. 

Spaight, p. 421, \ 
The Convention modified the earlier Hague Convention by 

providing that prisoners of war must be treated humanely, protected against violence, insults and public curiosity. Events 

of T~lorld War I indicate the need of protecting a prisoner from 

personal violence and abuse. Incidents are recorded where in 

the course of transporting prisoners to internment camps they 

were subjected to conduct tending to render them despicable in 

31 the eyes ofthe civilpopulation. The publicationof photographs of prisoners of war is not forbidden by this article mere

3 2 because individuals may be identified. However, the guiding 

principle that prisoners be humanely treated requires that a 

photograph be not of such a nature as to defame the prisoners or 

33 

invade their right of privacy. 

Reprisals against prisoners of war. ~eprisal'in the law 

of warfare signifies the commission by one belligerent of what 

would otherwise be illegal acts of warfare in order to compel 

34 the other to refrain from breaches of the law of war. Reprisa

31. 	 Hyde, Vol. 11, p. 333; cf. Boer protest against British 

sailors who sang patriotic songs while Boer prisoners weye 

betng transported to St. Helena. Flory, p. 40. 

32. 	 FM 27-10, par. 73. 

33. 	 SPJGW 1943111228, Aug . 7. 

34.. 	 Lawrence, p. 543; Spaight, p. 462: "Reprisals are a survival of the lex talionis - an eye for an eye, etc," 
are not prohibited by customary law.35 

g

36


not deal with or prohibit reprisals. However, the Convention 

37
 of 1929 prohibits reprisals against prisoners of war. 
 

In the Geneva Conference of 199 it was proposed that thoug

reprisals against prisoners of war be prohibited, the legality 
 

of reprisals should be recognized in case an enemy state should 
 

mistreat the prisoners of the other side. This proposal was not 

38
 adopted. 
 

Illustrative cases.--


a. Duping the Franco-German War, the Germans by 
 

way oT repri sal bomba~ded and fired undefended open 
 

towns where their soldiers had been killed by civilian 
 

enemies who did not belong to the armed forces. 3 9 
 

b. Several instances were reported in World War 
 

I where Germany reputedly established prisoner of war 
 

camps in areas exposed to afr attacks in reprisal for al- 
 

legedly illegal acts on the part of the allies. Reprisals 
 

35. Lauterpacht, p. 111. 
 

36. Lauterpacht, p. 449. 
 

37. FM 27-10,par. 73. The language of the Convention does not 

preclude measures of reprisal in behalf of prisoners of war. 

Rasmussen, p. 19, 
 I 

38. Flory, p. 44. 
 

39. Lauterpacht, p. 447, 
 
against prisoners o war are now prohibited by the 

Convention of 1929. €0 
 

c. During a small raid by British Commandos on 

the cEannel island of Sark on October 3, 1942, a Nazi 

officer and four soldiers were taken during the raid 

and were trussed. The trussing was a precaution taken 

during operations behind enemy lines. Germany in reprisal orderad the manacling of over 1,000British 

prisoners of war mostly Canadfan, German prisoner $1
 in Canada were reported handcuffed in retaliation. 
 

These reprisals were violative of Article 2 of the 
 

Convention. 
 

Persons and honor to'be respected. Article 3 of the Con- 

42 
 

vention should be read in connection with the first paragraph 

of Article 9. 43 Prisoners of war are not criminals and must no

be confined except as an indispensable measure of safety. 44 Of 

course, they are subject to confinement if they commit offenses 

45


or crimes . 

Illustrative csse.-­

During the Anglo-Boer War, the British protested 
 

the imprisonment of its captured troops. The Boers 
 

40. See Air Fower, p . 335, et seq. ; cf. Art, 9 of the Convention, FM 27-10, par. 82, which was expressly enacted to 
 

prevent reprisals such as given in the illustration by providing 

that no prisoner of war may be sent to an area where he would be 

exposed to the-fire of the fighting zone, 
 

41. Time, Oct, 19, 1942, p. 27; Nov. 2, 1942, p. 36, 
 

42. FM 27-10, par. 74. 
 

43. FM 27-10,pap. 82. 
 

44. Spaight, p. 280; Bordwell, p. 238., 
 

45. This will be dealt with later in par. 118. 
 
number of prisoners who had committed offenses against 
 

the laws of war and were awaiting trial or had at- 
 

tempted escapes or were suspected of the intention of 
 

attempting to escape, had been confined in a common 
 

prison as a measure of safety, but apart from the or- 
 

dinary criminals. Lojrr Roberts expressed satisfaction 
 

with the explanation. 
 

The use of dogs to maintain order and to prevent escapes in 

prison camps was the subject of protest by the Union to the Con- 

federates and by the British to the German government in 1916 as 

47 
 subjecting prisoners of war to treatment as criminals. 
 

A necessary incident to .the honorable status of a prisoner 
 

of war is his freedom from compulsory political indoctrination 
 

by the captor state. Thus, it would be improper to compel the 
 

attendance of prisoners of war at lectures or similhr instruc- 
 

tional activities in American history and government, democracy, 

etc. It is permissible to offer such instruction to prisoners 
 

48
 of war if attendance is on a voluntary basis. 
 

The duty of maintenance. The duty of maintenance of pris- 
 

oners of war is on the detaining state. The Convention of 1929 
 

drew a distinction between the captor state and the detaining 
 

46. Spaight, p. 280. 
 

47. Flory, p. 42; cf. American-German Berne Agreement, 1918, 
 

prohibiting use of muzzled dogs. 13 Am. J. Int. L. 406 
 

at 420. 
 

48. SPJGW 194314248, March 29. 
 
state and placed the responsibility fo~ maintenance on the lat49 ter. Thus, where the captor state transfers prisoners of war 

to an allied power, the transferee (detaining state) is under an 

50 * obligation to conform to the standards of the Convention. 

captor state does not divest itself of its primary obligations 

51 under treaty or international law by a transfer. It remains 

responsible to the power whom the prisoners served for whatever 

52

treatment the prisoners may receive from the transferee power. 

The power in whose service a prisoner of war was at the time 

of capture is the power entit,led to protect such prisoner, For 

example, Americans serving in the British armed forces captured 

53 by the Germans would be considered British prisoners. 

49; Rasmussen, p. 14; Flory, p. 45. 

50. In the absence of a treaty provision to the contrary, it is 

lawful for a captor state to transfer prisoners to an ally, 

The pay of a prisoner becomes fixed at the time of capture and 

would not be altered by a subsequent transfer, SPJGW .1942/3183, 

July 20. 

51. SPJG'EJ 1943/7203, May 21. Theore tically, every captor state 

is also a detaining power so long as the prisoner is within 

its control. ti he effect of the Geneva Convention is to require 

a detaining state that is not also a captor state to conform to 

the standards of the Convention. 

52. SPJGW 1943/7203, May 21. 

53. Flory, p . 35; cf , SPJGW 1942/6035~, December 21. 
Discrimination, Differences of treatment of prisoners of 

war are lawful onlg if based on military rank, state of physica

or <mental health, professional qualifications, or the sex of th

54 prisoner. Women prisoners of war must be treated with due re

55 gard to their sex. 

Illustrative case.-­

It would be improper for the captor state to accord different treatment to some prisoners of war on 

the basis of the willingness of such prisoners to attend lect es held by the captor state on political 

sub Sects. B 

78. Must Give Name and Rank; Coercion to Obtain Military 

Information Prohibited,-,-A prisoner of war is bound to give, if 

questioned, his true name and rank -or his serial number, The

only punishment for refusal to supply such information or givin

false information that may be imposed is the loss of privileges 

57 accorded to prisoners of his class, 'A prisoner may not be 

54. FM 27-10, par, 75. 

FM 27-10, par. 74; cf, The Berne Agreement DoSo - German

19187, Art. 31, which provided that female personnel, if 

tured; should be given every possible protection against har

treatment or insult; they were to be suitably and decently quay

tered, and p~ovided with lavatories, bathing facilities separat

from male prisoners. 13 Am. J Int . Lo 406 at 421. 

56. Cf. SPJGW 194314248, March 29, 

57, Art, 9 of the Hague Convention of 1907 required that the 

prisoner give only his name and rank, Spaight, po 289, 

states with respect to the 19?Convention, "No mention is made 
deprived of other privileges because he refuses to give other 

information. He may be questioned on any subject but he need 

58 

not answer nor may he be coerced into giving such information. 

It would be contrary to international law to force a,prisoner to 

59 give military information about his own forces. 

60 79. Effects That, May be Retained by Prisoners. --The Convention specifically provides that a prisoner of war shall remain 

in possession of "all effects and objects of personal use" althou

61 

the object may belong to his state, In practice objects of per

sonal use are understood to include gas mask, helmet, military. 

uniforms, clothing, and kit required for personal use, although 

technically they may belong to his g~vernment, Objects of value, 

which may not be taken from a prisoner, include such articles as 

57. 	 (~ontd.) of disciplinary punishment being inflicted if he 

declines to do so, and presumably the effect of Article IX 

is to put officers and non-comaissfoned officers who refuse to 

state their names and rank on the same footing as a pl-ivate." 

58. 	 Air Power, p . 340. a 

59. 	 The captor. may employ all humane means to obtain information 

from a prisoner of war. See Air Power, p. 341, et seq", for 

various non-forcible devices used in World War I for obtaining 

information such as microphones, bogus-fellow prisoners, etc. 

60. 	 See p. 127, infra. 

61. 	 Baker and Crocker, p, 44, citing U.S,R.L.W., 1914, and Edmonds and Oppenheim. 
horses, military equipment and military papers may be taken from 

prisoners of war. Property falling within the category of "arms

horses, military equipment and mflitary papers" may be confis63 cate'& though private property, for example, a revolver. Personal property not falling within the category of arms, etc., 

may be taken from a prisoner of war, though it would remain his 

property, if its possession would facilitate escape or espionage. 

Thus field glasses owned by a prisoner of war could be taken from 

64 him until his release from captivity. The sane rule would appl

with respect to any money in possession of the prisoner, that is, 

money taken from him must be credited to his account and a re65 ceipt given. On the other hand, all property belonging to the 

enemy state (except objects of personal use) may be confiscated 

by the captor state. Thus, field glasses belonging to the enemy 

Art. 72, G.O, 100 1i8637. -

68
., see, FM 27-10, par. 326; Air Pow.e~,p, 329. 

64. Air Power, p. 329, *. 

65. A large sum of money in the prisonerqs possession might 

facilitate his escape. Unless the prisoner gives his consent, the money may not be converted into.foreign cumency. FM 

27-10, par. 97; see also par, 2i(2), - Cir, 10, FD, Jan, 5, 1942.
state could be confiscated by the captor. The broad language 


of Article 6 permitting a prisoner to retain "all effects and 


objects of personal use" is subject to the necessary practical 


limitation of available transportation facilities as well as 


67
 housing facilities.


No statutory provisions exist at this time for the settle­


ment of claims against the United States for damages to prop,erty 

belonging to prisoners of war or interned enemy aliens. In case 


of loss o~ damage in such cases; the prisoner or interned alien 


would present his claim through diplomatic channels or petition 
 . 68 


Congress. 


80-81. Evacuation; Notification of Capture.--a, - Prisoners


in Places of Danger. Reprisals in advance, that is, the placing 


66. Such articles would be permissible booty and would belong 


to the government of the captor. See FM 27-10,par, 327; 


Phillipson, p. 220. 


67. Thus it was held that prisoners of war need not be allowed 


to bring in excessive baggage. The baggage allowed under 


transport regulations to United States personnel affords an ade­


quate basis for allowances to prisoners of war as a general rule. 

When transportation of excessive baggage is refused, an oppor­


tunity should be given to the prisoner to sell the property or 


to store it privately or with the axmy. SPJGW 1943/6501,May 12, 

68. SPJGbT 1942/6165, December 28, where it was also stated that 


"the Government is not an insurer of the property of pris­


oners of war or interned enemy aliens." 

subject to being injured by hostile acts undertaken by their 

compatriots, were of .frequent occurrence in past wars. 69 This 

practise is now definitely forbidden by Article 7 and Article 9, 

last paragraph. 70 The former en joins evacuation fPom the combat 

zone within the shortest possible time and the latter forbids th

sending back of prisoners into a region where they might be ex­

-posed to fire of a combat zone or used to give protection from 

bombardment to certain points by their presence. 

b. Sick and lounded. An exception to evacuation of pris- - * 

oners from the combat zone is made by Article 7 in those cases 

where by reason of sickness or wounds the prisoners cannot be 

immediately evacuated. Article 25 of the onv vent ion^^ is inspired by the same motive as Article 7 in providing that the sic

and wounded shall not be transferred as long as their recovery 

might be endangered by the journey. 

-

c . Notification of Capture. Article 8 requir-es belligerents through their- information bureaus to notify each other as 

soon as possible of all captures of prisoners as well as the official addresses to which letters may be sent to such prisoners. 

69. Air Power, p. 333. 

70. FM 27-10, pars. 80, 82. 

71. FM 27-10, par. 98, 
In case of prisoners being transferred from one camp to another

the detaining power is required to make arrangements for the fo

warding of correspondence and packages to their new destination

Under the terms of an Executive agreement between the Unit

States and ~ermany, 73 the German Armed Forces Information Serv- 

ice supplies information regarding captured members of the Unit

States armed forces to the Swiss Legation, designated by the 
 

United States as protecting power as well as to the central in- 

formation office for prisoners of war at Geneva., The Prisoners 

of War Information Bureau in the Office of the Provost Marshal 

General furnishes a like service with regard to German prisoner

taken by the United States. 74 
 

82. Internment.--Prisoners of war are not criminals and 
 

must not be confined except as an indispensable measure of safet

or sanitation. It is improper to place them in irons, bind them 

or otherwise restrain the use of their limbs.75 The distinctio

-

72. FM 27-10, par. 99. 
 

73. Executive Agreement series 2559 56 Stat, 1507. 

' 74. See FM 29-5, par. 826. -

75. Cf. Treaty between Prussia and United States, 1799,Art. 
 

XXIV; Baker and Crocker, p. 47. 
 
76 'restriction to a specified -locality and close confinement. 
 

-

a. Unhealthy Location. There is no rule of international 

law which forbids the transfer of prisoners of war to places far 

77 removed from their states of origin or the place of capture. 
 

However, the Convention does impose a duty of removing prisoners 

from areas where the climate is injurious for persons coming 
 

from temperate regions. 78 

b. Segregation of Nationalities, During World War I fre-
 -

quent complaints were made by the British against the German 
 

practice of mixing prisoners of war of different states of origi

and races in a single camp and even in the same barracks.79 The 

convention merely provides that belligerents should avoid so far 

as possible mixing prisoners of different Paces or nationalities 

in a single camp. 
 

83-85. Installation of Camps; Rations; Clothing .--a. - Installation of Camps. In World War I prisoners were at times 
 

76. Holland, p. 21. 
 

78. See Moore's Digest, Vol. VII, p. 225, for protest by United 

States to Great Britain for removing American citizens, pri

oners of war temporarily serving in the armies of the South Afri

can Republic, to such a "notoriously insalubrious a place as the 

Island of Ceylon". 
 

79. Garner, Vol, 11, p. 23. 
placed in empty barracks, disused factories and ships; tents, 

boarded and warmed, were also usedO8O The Convention relating 

to camp installations apparently refers to p'ermanent camps. It 

requires that prisoners of war be lodged "in buildings or in 

barracks affording all possible safeguards as to hygiene and 

healthfulness" .81 The must be protected from dampness

sufficiently heated and lighted. More definite standards are 

laid down by the Convention with respect to the total area and 

minimum air space of the dormitories and the bedding therein; 

these are to be the same as those provided for the troops at 

82 base camps of the detaining power. 

b. Rations, The Convention requires that prisoners of -

war be supplied with food equal in quantity and quality to that 

of troops of the detaining power at base camps. 83 In addition 

the Convention makes it mandatory for the detaining power to es

tablish canteens in caps whelae prisoners may obtain food produ

80. 	 Treatment of Prisoners of War, Lt, Gen, Belfield, 9 Grotius 

Society 131 at 139; Garner, Vol, 11, p. 13. 

81. 	 Seemingly, permanent internment aboard prison ships or in 

tents would be contrary to th& Convention. 

82. 	 The term troops at base camps means soldiers in barracks OF 

depots located in the interior outside of the combat area. 

Rasmussen, p. 14. 

83. a 	 See footnote 82 for definition of base camp, 
ligation dn the detaining power to permit prisoners to manage 
 

their own kitchens or prepare their own food, except-insofar as 

the detaining power is required to furnish facilities to prisone

so that they may prepare for themselves food in addition to that 

furnished by the detaining power .84 The Convention expressly 
 

permits the employment of prisoners in the kitchen if the detain

ing power so desires. Prisoners are permitted to receive indi- 

vidually postal parcels containing food and other articles .85 An 

obligation exists on the detaining state to provide so far as po

86
 sible food customarily eaten by the prisoners, 
 

The prohibition of the c on vent ion^? against collective dis- 

ciplinary measures affecting food is but part of the more genera

rule prohibiting collective punishment of prisoners for individu

84. See FM 27-10, par, B, which provides that the management of 

the mess by the officers (prisoners of war) themselves shou

be facilitkted in every way. 
 

85 FM 27-10, par. 110, See Treatment of Prisoners of War, Lt, 

Gen. Belfield, 9 Grotious Society 131 at 138, who in speaking of rations given to prisoners in Wo~ld PTar I stated: "Owing 

to the inadequacy of the food and clothing issued by Enemy Power

a very large amount was sent to British prisoners from this coun

try and without this their lot would indeed have been lamentable

86. Flory, p'. 68; Spaight, p, 277. 
 -
-- - 

acts.88 In World War I, where individual prisoners attempted to 

escape, the Germans punished the entire camp by depriving all 

prisoners of privileges and, sometimes, the entire camp was deprived of food for twenty-four h?urs. 89 

-

c . Clothing. The Convention of 1929 places the duty of 

furnishing clothing and footwear on the detaining state and requires it to furnish replacement and repairs of such articles 

regulmly. In addition, the prisoner of war must receive work 

clothes whenever the nature of work requires it, The Hague Conventions of 1899 and 1907~' require the detaining power to fur- 

, 	 nish clothing to prisoners on an eoual basis with its own troops

The Convention of 1929 mkes no provision for a standard, \:%eth

equality with the detaining power's own troops or one of reason­

' 	 able need is the proper standard is uncertain, 91­

86-88, 'sanitation and Medical Care. .. -a, Sanitation. 

ticle 13 requires the detaining state to take all sanitation . measures necessary to assure healthfulness of camps, to pro-vide 

88. 	 See FM 27-10, par o 119,

89. 	 Garner, Vol. 11, p. 47, 

91, 	 Flory, p. 62, states that practice indicates that the standard is reasonable need; cf, FM 29r59 par, 83 (2)~~ (3). 
 See 

PP. 	 73, et seq., infra, and p, 83, infra, for dfscussion of de-- 

duction of cost of maintenance from -wages or pay, 
-- 

camps with baths and showers so far as possible, to furnish sufficient water for the bodily cleanliriess of prisoners, and installations, available day and night,- conformiag to sanitary 

rules. 92 In addition,prisoners of war must be permitted physical 

exercises and allowed to enjoy the open air, There is no duty on 

the detaining state to permit prisoners to walk outside the camp. 

b , - Medical Care. In addition to the general injunction 

that the sick and wounded are to be cared for without distinction 

of side or nationality,94 Article 14 requires that each camp have 

an infirmary where prisoners are to receive every attention they 

-

need; prisoners who are seriously 411 or require major surgical 

operations are to be hospitalized in a civil or military establfs

ment; expenses of treatment and hospitalization are to be borne 

by the detaining powero It is to be observed that two standards 

of care are stated: (1)equality with detaining pd-wer's own 

troops,95 and, (2) the need of the prisoner of war. These are D 

92. Cf, Garner, Vol. 11, p. 1, et seq,, ~OFaccount of "plague" 

camps at Wittenberg, Gardelegen and Ruheleben during 1,$70rld 

War I. 

93. Cf. Berne Agreement, 1918, Art. 60, between United States 

and Germany which permitted outside-,of .the-camp exercise, 

to get the prisoners away from the barbed ire. 13 Am, do Into 

L o 406 at 430, 

94. FM 27-10, par, 174, this article has been in practice interpreted to mean equality of treatment with the forces of detaining power. Cf, FM 29-5, par. 83(3)d3 

FM 27-10, par, 174. 
not incompatible so long as the higher of the two standards in 

given case is applied by the detaining power. 96 
 

89. Religious Freedom.--This article guarantees a prisoner 

freedom of worship including the right to attend religious serv

ices within camp. Inversely, it impliedly prohibits the detain

gower from compelling prisoners to attend the religious service

of any churchOg7 It has been stated that. this article forbids 

the detaining state from engaging in relXgious propaganda which 

has as its aim the dissemination of ideas contrary to the pris- 

oner's religion. 98 Ministers of re;igion, prisoners of war, are 

permitted to minister to their coreligionists. 99 
 

pb Recreation,.=-Duringthe Civil War and in World War I, 

the belligerents provided recreation grounds for prisoners of 
 

war, organized classes, reading materials and other forms of 
 

recreation.lOO The Convention reasserts the customary rule of 
 

96. cf. Flory, p, 96. 

97. See Spaight, p. 31.6, who states that "Article XVIII /of the 

Hague Regulations, which fs identical with the firstparagraph of this article7 guarantees freedom of conscience * * *". -

98. Flory, p. 86, quotes a delegate at the Conference of 1929 

to this effect, 
 

99. Although the Convention does not permit chaplaiqs to be 
 

detained as prisoners of war but contemplates their return 

as soon as military exigency permits, they may in fact remain in 

rthe prison camps and minister to their comrades. 
 

100,Flory, p, 85, 
 
possible intellectual recreation and sports organized by pris- 

oners of wm. Individual shipments of books to prisoners, sub J

to censorship by the detaining power, are permitted by the Con- 

* 

vention.lol According to a neutral YMCA Secretary who visited 
 

a prison camp in Germany, some prisoners of war are studying 
 

languages. He also stated that 50 or more prisoners at the cam

-	 were preparing for examinations; some for the University of Lon

102 don, the rest in commerce and law, 
 

91-93. Courtesy and Discipline.--Prisoners of war must 
 

salute all officers of the detaining power. Officers who are 
 

prisoners are bound to salute officers of equal or higher rank 

of the detaining power, lo3 The second paragraph' of Article 18 
 

indicates. that prisoners of war must also observe "the external 

marks of respect provided by the regulations in force in their 
 

101. FM 27-10, par, 112, Shipments of books by representatfves 

of the protecting power and authorized aid societies may 
 

not be delayed on the pretext of censorship, The character of 
 

the sender is a guarantee against abuse. Rasmussen, p, 31. 
 

102. N.Y, Times, 4-1-43., 
 

103 See SPJGW 1943/6093, April 23, where it was stated that the 

detaining power could try by court-martial an officer of 
 

the United States for failing to salute a superior officer of 
 

the detain'ing power, 
 
armies with regard to their nationals". lo4 ~uring world war I 

the British maintained discipline among prisoners of war by 
 

utilizing the authority of the prisonervs own senior officers 
 

and noncomissioned officers in their respective camps. 105 
 

Communication of orders, -etc, Regulations, orders, etc,, 

must be communicated to prisoners of war in a language which 
 

they can understand. The text of the Geneva Convention of 1929 

relating to prisoners shall be posted, in the camp, in the mothe

106
 tongue of the prisoners whenever possible . 

94-96. Pay and Maintenance of Officers and Assimileso--a

-

"Assimiles". Article 21 of the Convention, which provides that 

"officers and assimiles" shall be treated with regard to their 
 

rank and age, does not define "assimilesl'. Civilians who follo

theamed forces without directly belonging to it107 are "assh

iles". Thus, such civilians performing work of a character or 
 

104. Sp~ight, p. 286, states the German pactice in the Franco

German War of 1870 as follows: "Obedience and military 
 

honours were required from prisoners, and any insubordination o~ 

want of respect,. even among themselves, was punished by arrest,'

105. The two grades were never detained together, Treatment of 

Prisoners of War, Lt. Gen, Belfield, 9 Grotius Society 13

at 143. 
 

106. FM 27-10, par, 168. 
 

107. FM 27-10,par. 76b. 
 -
gqy, 

The practice of nations in this and the last world war is in con- 

formity with this interpretation. Thus, war correspondents with 

the armed forces of the United States haye been assigned .the rank 

of second lieutenant in the event of capture, lo9 Article 21 re-


quires the belligerents to furnish each other a list of the title

.. 

and ranks used in their respective armies and a similar list for 

assimiles. Certificates issued to civilians attached to the 
 

army1l0 state whether the bearer in the event of capture will be 

given the rights and privileges of an officer or enlisted man. 
 

Warrant officers would come within the definition of assimiles 
 

111
 and be entitled to treatment as officers. 
 

b. Officers Pay and Maintenance. Subject to special ar- 
 -

rangements between belligerents, officers and assimiles are en- 
 

titled to receive from the detaining power the same pay as of- 
 

ficers of their rank in the service of the detaining power if not 

108.Where the natme of the work performed corresponds more 
 

nearly with that perfomned by noncommissioned personnel, 
 

the civilian may be classified as such: SPJGW 1943/10138, July 
 

8. 
 

109. See SPJGV 1943/7418, June 10,for extended discussion, See 

pa 136, infra, footnote 72. I) 
 

110. See sec. VI, Cir. 33, WD, Jan, 30, 1943. 

111. Cf. Rasmussen, p, 14. 
in excess of the rate in their own servicei112 Customary law 
 

Y 

placed no such duty on the detaining state. An bfficer pris

of war is entitled to a continuation of his pay notwithstanding 

any'subsequent confinement under conviction by a civil court fo

a, crime committed before the war, '14 Officers are charged for 

the cost of maintenance which,is debited against the pay they r

ceiye. Presumably Article 22 of the Convention limits the item

of maintenance which may be deducted from an officer's pay to 

food and clothing. In World War I, Britain protested the Germa

practice of requiring officers to purchase their own cutlery and 

drinking vessels and everything making for reasonable comfort. 

In some Turkish camps officers were called on to pay for their 

accommodations; the practice was stopped after protest. The 

British view was that everything really necessary should be pro

vided by the detaining state and every luxury excluded; that the

112. Cf, SPJGW 194317418, June 10. Contra, Air Power, p , 418, 

where it is stated that civilians taken prisoners of war 
 

would not come under Article 23 of the Convention under which 
 

"assimilesfsare entitled to receive pay. 
 

Civilian enemy alieis interned in the belligerentq s own 
 

territory at the outbreak of war receive no pay except for work

See pap. 4, Cir, 10,WD, Jan,..?,1943, 
 

113. Flory, p. 83. 
 

114. Dig. Op, JAG, 1918,Vol, 11, p. 1060, The detaining state 

. 	 is not bound to recognize the promotion of a prisoner of 
 

made after his captwe. SPJGW 1943/10705, Au@st 2 
 

., 
pp

uniform and laundry. 115 
 

Administrative provisions for facilitating the application 

of the rules with respect to pay are included in the Convention. 

Thus, the belligerents are to exchange lists of ranks in order 
 

that equivalents be established; and in the absence of special 
 

agreement, the exchange rate to be adopted for pay purposes is 
 

the rate in force at the outbreak of hostilities. 
 

In the present war the enemy belligerents by agreement, mad

through the Swiss government as neutral intermediary, have fixed 

an allowance for officers and assimiles In lieu of the pay re- 
 

quired by the Convention. Generally this allowance is much lowe

than the standard of pay fixed in the,Convention. Officers and 

assimiles are not charged for food and clothing, both items bein

\ 

116
 furnished them as part of the arrangement, 
 

The practice of nations has been to provide separate acoom- 

modations for offf cers apart from enlisted personnel. I'7 1n 
 

Germany and Great Britain during World War I, officers were gen- 

118
 erally placed in different camps from enlisted personnel. 
 

115. Lt. Gen. Belfield, 9 Grotius Society 131 at 138. 
 

116. See par. 5; Cir. 10,FID, Jan. 5, 1943, for monthly allowanc

to officers. 

117.Garner, Vol. 11, p. 12. 
 

118. Cf. FM 29-5, par. 742(3). Differences in maintenance may 

be based on rank. FM 27-10, par. 75 

All disbursements of pay made to prisoners of war must be 

reimbursed at the end of hostilities by the state in whose army 

119
 they served. 
 

100, 102-105. Authorized and Prohibited Prork of Prisoners 

120

of War.--a. Officers and Assimiles. Officers and assimiles 
 -

receive their pay even though they do not work, 12' The donven- 

tion incorporates the customary rule of international law that 

officers and assimiles cannot he comp-elled to work, although th

122


may request work compatible with their status. 
 

A literal reading of Article 27123 df the Convention would 

justify the conclusion that civilian prisoners except those ass5milated in rank to officers may be compelled to wo~k. A contrary opinion has been expressed by Spaight who states that thi

Article is applicable only to prisoners who are members of the 

armed forces. In this view, civilians who are of the status of 

119,The Treaty of Versailles and the Treaty of Berlin, Aug. 19

waived reciprocally all repayments due for maintenance of 
 

Prisoners of war. 
 

120. See p, 71, supra, for definition of "assimiles". 

121; See p . 72, supra. 

122. Flory, p . 71. 

123. FM 27-10, par. 100. 
 
p

work.124 
 

-

b. Other Prisoners of War. Prisoners of war other than 

officers and assimiles may be compelled to work by the detaining 

state.125 The Convent ion states that able -bodied prisoners of 
 

war may be employed according to their rank and aptitude. Ar126
 ticle 29 of the Convention prohibits the employment of pris- 
 

oners at work for which they are physically unfit. It would 
 

seem that these provisions were intended to protect prisoners 
 

from being assigned to work for which they are neither fitted 
 

in aptitude nor in physical strength. 127 
 

124. Air Power, p. 418, citing Mr. Temant, Under-Secretary of 
 

State for War, who stated in the House of Commons on March 

1, 1916: "Civilian prisoners cannot be forced to work otherwise 

than in the maintenance of their camps * * *I' Mr. Hope stated, 

again, in the House on March 20, 1917: "According to internation

usage compulsion LTo work7 could not be applied to civilians as .

the case of combatant pr~soners, " 

125. Spaight, p. 281; see p. 77; infra, for noncommissioned of- 
 

f icers. 
 

126. FM 27-10, par, 102. 
 

127,Cf. 13 Am. J. Int. L. 406 at 424, where the Berne Agreement, 

1918, contained substantially the same provisions the herican member of that conference said: "It is notorious that in 

the employment of prisoners of war at physical labor the Gemn 

authorities had either purposely or carelessly put many a round 

peg into a square hole. Men of professional or clerical life had 

been forced to perform hard physical labor'for which they were 

fitted neither in aptitude nor in muscular strength. It was to 

correct this abuse that we insisted on the inclusion of these 

words -bptitude and physical ability7. " I -
Prisoners of war who belong to the armed forces may not be 

compelled to do work humiliating to their military rank or de- 

gradim in character. 128 For example, the employment of prison

of war as garbage collectors for cantonments would be objection

able as work of a menial nature. 129 
 

The article of the Convention providing that noncommisf3ion

officers shall. only be required to do supervisory work unless 
 

they request remunerative work is a recognition of the practice 

of belligerents that noncommisiioned officers shall not be re- 

quired to perform manual labor in the same way as privates. In 

World War I an attempt was made by Germany to evade this princip

by establishing separate noncommissioned officers camps and the

under the guise of necessary camp work compelling these noncom- 

missioned officers to perform all manner of manual labor, 130 
 

Seemingly, noncommissioned offi-cers may be required to do super

visory work in connection with the operation and administration 

128. Baker and Crocker, p. 51, citiri Article 25, "Declaration 

of Brussels, and Oxford Institute". 

I 

129. SPJGW 194213836, Sept , 15; see also Flory, p . 72. However

prisoners of war could engage in varfous tasks necessary fo

the upkeep of their om camp including garbage collection, 
 

1 130. 13 Am, J. Int. L. 4b6 at 423, 
their request. 131 

The ~onvention'~~ prohibits "excessive" work being demanded 

of prisoners of war and fixes a maximum limit of hours beyond 

which prisoners may not work, namely, the working hours of the 

civilian population in the sanie mea doing the same work, The r 

time occupied in going to, and returning from work is included 

in the working day. Whether the lunch hour would be excluded or 

included in ~Alculating the work day would depend upon the practice of the civil population in the same work in the same area, 

The Convention also provides that prisoners shall be given 

24 hours rest per week, preferably on Sunday. 

-

c ; Unhealthful or Dangerous Work. In World War I frequent 

protests were made by the belligerents that prisoners of war were 

being compelled to perform dange'rous wo~k or engage in unhealthy 

occupations, 133 Britain used prisoners for a variety of work , ' 

including work in railroad quarries and road making. Brftain, did 

not employ prisoners in mines or swamp draining , France employed 

prisoners to work in quarries and cut timber, Strong protests 

were made by the French government to Germany of the use of prfs-. 

oners in coal, salt and potash mines where the sickness, accident

131, SPJGW 1943/11081, August 12. 

132, FM 27-=lo, par, 103, 

133. Garner, Vol, 	11, p. 40, Thus Germany used large numbers of 

prisoners in draining swamps in northern Germany, 
and death rate were high.134 The Berne Agreement between the 
 

United States and Germany, ~918,~~~
 prohibited either party fro

working prisoners of war in mines, marshes or blasting work in 

quarries.136 

The ~onventionl~~ 
 expressly prohibits unhealthful or dan- 

gerous work. Work in open pit mines,13' underground coal rnin- 

ing,13' 'and employment in logging' and sawrni lling140 are dangero

work prohibited by the Convention according to'the view of the 

United States. Dangerous work has been defined to be work wher

the prospect of disabling injury is substantially more than ave

age.14' Whether a particular employment is dangerous or unheal

ful is a question of fact and reliable statistical information 

\ 

134. Garner, Vol. 11, p. 41, et seqo 
 

135. See comment by Ame~ican delegate, 13 Am, J . Int Lo 406 at 

42k. 

136. The American Delegation took the position that these were 

dangerous occupations, 
 

137. FM 27-10, par, 105. 
 C 

138, Open pit mining is open to sunlight as contrasted with 
 

underground mining. 
 

139. SPJGW 1943/7350, June 18. 
 

140. SPJGW 1943/99489 July 3, where it was heid that non-danger

work connected with the logging and sawmill industry was pe

missible. "Work" refers to the particular job not the industry

SPJGW 1943/1098, August 11. 
 

141. SPJGW 1943/10908, Au@;ust 11. 
 
with respect to the incidence of accident, occupational disease, 

142
 etc., are persuasive in determining the question. 
 

-

d. Kind of Work Prohibited. The Conventionlh3 enunciates 

a general rule'that work done by prisoners shall have "no direct 

relation with war operations". The Convention specifically prohibits: (1)employment of prisoners in the manufacturing and 

transportation of arms or munitions of any kind, and, (2) their 

employment for transporting materiel intended for combatant 

units. 

This article has to some extent given rise to conflicting 
 

interpretations as was the 6ase with the corresponding article 
 

I 

of the Hague Convention. It is evfdent that the term "direct 
 

relation with war operations" does not refer to the physical or 
 

geographical distance of the work from the combat zone. Articles 

7144and 9145 already provide that prisoners ought not to be kept 

in the zone of combat. lh6 A strict interpretation of this articl

142. Cf . SPJGLI 1943/7350, June 18, and SPJGW 194319948 , July 3, 

where Department of Labor statistics on accident rates were 
 

used to determine whether open pit mining and logging were dan- 
 

QeYOUS. 
 

143. FM 27-10, par. 104. 
 

144. FM 27-10, par. 80. 
 

145. FM 27-10, par. 82. 
 

146. Rasmussen, p.. 33. 
 
would distinguish between war operations and war preparations an

only the former would be forbidden. Thus, under this view pris- 

oners of war may be compelled to render assistance in the con- 

struction of military roads, fortifications and the like in the 

zone of the interior since this is only in preparation for milit

operations.147 A literal application of the Convention would no

exclude the employment of prisoners in the manufacture of.war ma

teriel other than arms and ammunition if it has no direct con- 
 

nection with military operations .148 Thus, it has been stated 
 

that it would be permissible to employ prisoners in forests to 
 

cut trees destined for the front. 149 Similarly, the prohibition 

against employing prisoners of war for transporting materiel in- 

tended for combatant units does not prevent the transpo?t of ma-

teriel (other than ams or ammunition) intended for noncombatant

in the fighting zone. 150 
 

A more liberal interpretation would forbid all acts directl

and distinctly in aid of military operations (i .e., assist in th

work of attack or defense). Thus the digging of trenches, the 
 

147. Lauterpacht, p. 344; Rasmussen, p. 34.. 
 

148. Lauterpacht, p. 298;Rasmussen, p. 34.. 

149.Rasmussen, p. 34. 
 

150. asm mu is en, p. 34. ­
the building of roads to be used exclusively for milltary pup- 
 

poses, the construction of gun emplacements, the making of camou

flage nets to be used for camouflaging military installations, 
 

and the digging of coal in mines which supply military needs are 

prohibited,15' If the community benefits generally from the work 

done by. the prisoners, the fact that the military also secures a 

benefit will not be violative of the Convention. Thus prisoners 

may be employed in 'the construction of roads of general utility 
 

although the military also uses the road. 152 similarly, *$is- 
 

oners may be employed in the manufacture of wood pulp though a 

minor part of the production is used for the making of munitions.153 The employment of prisoners in soil conservation projects, agricultural work, forestr~,"~ or in a quartermaster9 s 
 

laundry is permissible. 155 
 

151. See Phillipson, p. 197; Spaight, p. 152; SPJGW 194211746, 

May 1. 

152. Phillipson, p. 197. 
 

153. SPJGW 1943/7234, June 17. 
 

154. Flory, p. 76. 

155. SPJGW 1943/10831, July 27. 
 
This article is directed against compulsory labor of pris- 

oners of war in the prohibited ac'tivities; the acceptance of 
 

voluntary service is not prohibited. 156 
 

107.Wages of Prisoners of War and Deductions for Mainte- 
 

nance. --157~nder the onv vent ion,''^ prisoners of war, must be 
 

supplied with food and clothing, and since prisoners (other than 

officers) receive no pay except for work done, these items are 
 

furnished without charge to the prisoners. Prisoners receive no 

wages for work connected with the administration, management, 
 

and maintenance of camps. 159 
 

In the absence of agreement between the belligerents, work 

done for the state shall be paid for at the same rates as those 

in force for members of the detaining state's aqed forces en- 
 

gaged in the same work, or, if none exists, according to a rate 

156. See Spaight, p. 144. The voluntary service of a prisoner 
 

of war in a prohiljited activity is undesirable as a matter 

of policy. If prisoners of wax= are allowed to perfom such work

charges may be made by the state of origin that they are doing 
 

so under duress and reprisals may be taken for such supposed 
 

violation of international law, SPJGW 1942/190,May 9, 
 

157. See p. 72, supra, for officer prisoners, 
 

158. See FM 27-10,pars, 84, 85. 
 

159, Cf . Dig, Op. JAG, 1912-40,Const. 11, 2(4), 383 "6,July 20, 

1918,where Tt was held that under customary internatfonal 

law prisoners employed in the construction of barracks to be oc- 

cupied by themselves must be paid. 
 
for others than the state, are' regulated by agreement with the 

160 military authority of the detaining state. 

Where the prisoner works for the state which pays him the 

rate in force for military personnel of its armed forces, the 

duty ofthe detaining state has been fully discharged. 16' 1n 

cases where the prisoner works for the state,- no deductions for 

the cost of maintenance are made from the earnings since prisoners are to be treated like soldiers of the detaining state and 

generally no such deductions would be made from the latter's 

Pay a Subject to the rule of equality of treatment with soldiers of the detaining state, the cost of maintenance of a prisoner of war may be deducted from his wages. 163 

160. This provision requires no more than that the conditions of 

work should meet with the approval of the military authorities rather than a specific agreement by the military authorities and the employer of the prisoners. SPeTGW 1943/9801, July 7

161. Thus, a prisoner of war would not be entitled to the difference between the 80# per day 'received by them in working 

for the state and the higher rate at which such labor is valued 

for accounting purposes, SPJGW 1943/10831, July 27; see par. 4, 

Cir. 10, 10, Jan. 5, 1943, for wage allowance and money allowance

162. Spaight, p. 284. 

163. .Art. 6 of the Hague Regulations of 1907. The Convention of 

1929 did not repeat ,this rule, but it is implicit in Article 

34. F~OYY, p. 81. 
Where the prisoner works for others than the state, the Co

vention contains no provision specifying how much of the value 

of his labor must be given to the prisoner. The total amount 

earned by the prisoner need not be paid to him; the state may 

deduct the cost of maintenance from the wages earned by the pris

oner. 164 Similarly, the state may receive the payments for the 

labor of the prisoners, pay the prisoners an amount equivalent t

that paid prisoners working for the state (804 per day), and retain the-balance to defray the cost of maintenance of prf.soners. 

There is no obligation on the detaining state to place at t

disposal of a prfsoner all of the wages belonging to him. The 

b 
 

state may withhold from the prisoner part of his earnings and 

16

credit them to his account to be paid at the end of captivity. 

Surplus wages so withheld are considered part of the financial 

resources of a prisoner and he may transfer those funds to banks 

or private persons in his country of origin. 167 

165. SPJGW 1943/9801, July 7. 

166, FM 27-10, par, 97, , 

167. FM '27-10, par. 97; MS. Comp. Gen, B-29149, Oct. 19, 1942, 

See, however, Trading with the Enemy Act, Oct. 6, 1917, as 

amended, 55 Stat. 389, and E.O. 9193, July 6, 1942, requfrfng th

issuance of a special license. 
remains under the protection of the detaining state and the state 

may not relieve itself of the obligations of the Convention with 
 

respect to the prisoner, though in fact the employer may be main- 

168
 taining the prisoner. 
 

The pay of a prisoner of war accrues from the date of cap- 
 

tureL6' or if 'the prisoner be captured by an ally and turned over 

to the detaining state from the' date of actual delivery of the 
 

prisoner to the detaining state. 1.70 
 

Work ac6idents. The ~onvention'~~ provides that the detain- 

ing power shall allow prisoners of way who are victims of acci- 
 

b 

dents in connection with their work, the same benefits extended 
 

to its own natfonals doing the same kind of work according to the 

legislation of the detaining power, At the American delegate's 
 

suggestion that the federal nature of some governments mfght make 

the application of this provision difficult, the article was 
 

amended to provide that such governments recommend to their 
 

168. FM 27-10, par. 101. 
 

169. Par. 4, Cir. 10,WD, Jan. 5, 1943. 
 

170. SPJGW 1943/6491, Apri 1 26. 


171.FM 27-10, par. 100. 
 
legislature all proper measures for the equitable compensatfon 
 

172
 of the victims. 

Prisoners of war who are injured in the employ of the United 

States would be eligible to receive benefits under the Federal 

Employers Compensation in. the absence of the payment of 

equivalent benefits by the government. 174 If 	the prisoner be 

not employed by the federal government but by a state, subdivision thereof, or private person, the federal government may itsel

undertake to make payments arising from work accidents or expres

ly stipulate with the employer of the prisoners for conformance 

with the Workmen's Compensation Law of the jurisdiction where the 

175 prisoners are employed. 

108-114. Correspondence and Parcels.--FTithin a period of 

, 

n6t more than one week after his arrival at a 	camp every prisoner 

176 

must be enabled to corres,pond with his family. The detaining 

172. Flory, p. 80. 	 . 173. Sept. 7, 1916, as amended, 39 Stat. 742. 

174. SFJGFr 1942/412, Feb . 7. The Convention would not require 

payments to heirs in case of a fatal accident since by its 

terms the benefits are to be paid to the prisoner durfng captivity. SPJGW 1943/9602, July 10. 

175. Of course, the obligations imposed on the detaining power b

the Convention may not be shifted by contract if in fact th

are not performed. 

176. FM 27-10, par. 109. 
of war may send. Such letters and cards may not be delayed or 

retained for disciplinary purposes' even though the laws of the 

177 detaining power so provide. Of course military necessity 

will permit the temporary prohibition of correspondence by prisoners of war but the prohibition must be of .,the "shortest duration 

possible". 178 Letters to and from prisoners are liable to censor1-79 ship as are books. The Convention specifically provides that 

letters, money orders, and packages sent to or from prisoners of 

war are exempt from postal charges in the country of origin, 

destination, and in countries en route. Gifts and relief in kind 

for prisoners are exempt from customs and other duties as well 

as railway charges on state operated railways. Information bu180. 

reaus enjoy similar franking privileges as prisoners of war. 

Air mail letters and c.0.d. packages to or 	from prisoners of war 

181 

are not entitled to the franking privilege. 

177. Rasmussen, p . 36; cf . JAG Ops., 1918, Vol, 11, p . 572, where 

it was held that a prisoner of war in a civil prison undergoing punishment for civil crimes should have no other privileges 

of correspondence than allowed other civilian prisoners. 

178. FM 27-10, par. 113. 

179. 

par. 

Books sent by protecting'power and recognized aid 

may not be delayed on the pretext of censorship. 

112. 

societies 

FM 27-10, 

180. FM 27-10, par. 166, 

181. 35 Am. J. Int. L. 365 at 368. ' 
Mail originating in or destined to neutral territory to or 

182 

from a prisoner of war is entitled to the franking privixege. 

The practice in hrorld War I indicates that no limit was 

placed by detaining power on the number of letters or packages a 

183 prisoner could receive. Generally, none of the belligerents 

184 ., permitted newspapers to b'e sent or received by mail. It is 

interesting to note that the French government in World War I pro

tested the refusal of the German government to cash money orders 

1

sent to prisoners of war as a violation of the Hague convention. 

186 

The Convention specifically requires that the detaining state 

shall provide facilities for the transmission.of instruments' intended for or signed by prisoners of war particularly wills and 

powers of attorney, and assure, in case of necessity, the au187 thentication of prisoner's signatures. 

182. 35 Am. J. Int. Lo 365 at 368. 

183. See Garner, Vol . 11, p . 36; .Flory , p . 104. It would seem, ' 

however, that a detaining state could limit the nwnber of 

packages sent to prisoners if it unduly burdened transport facilities needed for military purposes. 

184. Garner, Vol. 11, p. 36. 

185. Garner, VoP. 11, p. 40, 

186. FM 27-10, par. 114. 

187. FM 27-10, par. 114. 
115

117; 169170. Protecting Power and Complaints.It is 
 

customary for neutral governments to extend their good offices 
 

in protecting the interests of a belligerent government in the 
 

enemy state especially with respect to the inspection and super- 

188 
 vision of relief of prisoners. The Convention recognizes the 
 

protecting power as an important agency for securing compliance 
 

with its terms. The protecting power may in fulfilling its duties 

s 

utilize its diplomatic or consular officials or may appoint, sub- 

ject to approval of the belligerent in question, delegates from 
 

189
 its own nationals or other neutral powers. 
 

Representatives of the protecting power or its approved 
 

delegates must be permitted to go any place, without exception, 
 

where prisoners are interned and converse with them, as a general 

190
 rule without witnesses, personally or through interpreters. 
 

The provision allowing the representatives of the protecting power 

to go any place would permit such representatives to visit prisons

camps, fortresses, or even the combat zone if prisoners of war are 

in such places. 19' The implied qualification in the statement 
 

189. FM 27-,lo, par. 169. Non-diplomatic delegates are subject to 

approval of the detaining state. Rasmussen, p. 61. 
 

190. FM 27-10, par. 169. 
 

191. Rasmussen, p. 60, Military autho~ities are to be informed 
 

of such visits. 
 
that the representative of the protecting power may as a general 

-

rule hold conversation without witnesses was intended to prevent 

192

an abuse of the private interview for purposes of espionage. 
 

Persons of the same nationality as the prisoners of war may take 

part in inspection trips made by the representative of the pro- 
 

tecting power only by special agreement between the belliger- 
 

193 
 ents. 
 

The Convention also provides machinery for the settlement of 

disputes between belligerents regarding the application of the 
 

194 
 

Convent ion. The protecting power may suggest a meeting of 
 

1 

representatives of the belligerents on neutral territory, The 
 

belligerents are bound to accede to proposals made to them with 
 

this object. The functions of the detaining power do not derogat

from the humanitarian activities of the International Red Cross 
 

195
 in the interest of prisoners of war. 
 

196
 Articles 42, 43 and 44 confer the right on prisoners to 
 

make complaints and requests with regard to their treatment to 
 

192. Rasmussen, p. 60. 
 

193. Rasmussen, p. 61. 
 

194. FM 27-10, par, 170. 
 

1%. FM 27-10,' par. 171, 
 

196. FM 27-10, pars. 115-117. 
 

I 
resentatives of the protecting power. These requests and com- 
 

plaints must be transmitted immediately. Prisoners must be per- 
 

mitted to appoint agents, subject to approval by the detaining 
 

power, to represent them before the,military authorities and the 
 

protecting power. In officer camps, the senior officer prisoner 
 

of highest rank is to be'recognized as the intermediary between 
 

197
 the camp authorities and the officers. . The Convention protects 

prisoners who avail themselves of the procedure by prqhibiting 
 

punishment for complaints even if found to be groundless. 
 

164-165,171. Relief Societies. --Belligerents are required 
 

to grant relief societies for prisoners of war every facility for 

198
 the performance of their work. Such societies must be con- 
 

stituted in accordance with the law of their country and their 
 

representatives must give an undertaking in writing to comply 
 

with all military and administrative measures. It must be noted 
 

that the admission of representatives of relief organizations to 
 

prison camps,, etc., is subordinated to military necessity and a 
 

199
 personal permit from the military authorities must be secured, 
 

197. The senior officer of the line is recognized as spokesman. 
 

SPJGW 1943/10679, July 21. 
 

198. F'M 27-10, par. ,164. 

199. Cf. p. 90, supra, relating, to inspections by the "protecting 

power". Article 86,FM 27-10, par. 169, dealing with this 
 

matter contains no reference to military necessity. Rasmussen, 
 

p. 54. The provision relating to admission to camps of relief 
 

societies appears to carry no legal obligation. Flory, p. 102. 
 
200 

Throughout the Convention there is implied permission 

given to the International Red Cross to carry out its humanitaria

activities with respect to prisoners of war with the consent of 

201 

the belligerents. 

163, 166. Official Information Bureau. --Every belligerent 

and neutral state (which detains members of the armed forces) 

must establish at the outbreak of hostilities, an official in20

formation bureau regarding prisoners of war in their territory. 

This bureau is required to furnish a list of prisoners to the 

interested powers through the protecting powers and thg central 

agency. 203 It is charged with the duty of replying to all inquiries with respect to prisoners of war, The bureau must keep 

up to date a separate record for each prisoner showing internments, transfers, paroles, repatriation, escapes, hospitalization

deaths, and other information. The bureau must forward to prisoners all letters, packages and money, In addition it must recei

200. FM 27-10? pars. 165, 171, 

201. The Convention of 199 does not mention the Red Cross and 

similar organizations with respect to investigating conditions in camps and hearing complaints of prisoners, but it does 

not preclude the possibility of such activities. Flory, p. 107. 

202. FM 27-10, par. 163. 

203. See FM 27-10, par. 165, for the central agency, 
left by prisoners who have been released on parole or repatriated

or who have escaped, or died, and transmit these articles to the 

interested countries. These bureaus are entitled to franking 

204 

privileges and free transport. 

118-140. Crimes and Offenses.--a. - General. Prisoners of 

war are subject to the laws and regulations of the armed forces 

of the detaining power. 205 Prisoners must not be subjected to 

punishment other than those prescribed for the same acts by members of the.armed forces of the detaining power. 206 Generally, 

prisoners of war must be treated like the soldiers of the detaining state, no better and no worse. 207 Despite this general rule 

of parity between prisoners of war arid the soldiers of the detaining state, certain punishments are absolutely forbidden though 

permissible under the laws of the detaining power. For example, 

any corporal punishment, imprisonment in quarters without daylight, cruelty, collective punishment for individual acts, are 

208 

absolutely forbidden. Again, no prisoner of war may be de209 prived of his rank by the detaining power. 

204. FM 27-10, par. 166; see also 'p. 88, supra. 

205. FM 27-10) par, 118. 

206. FM 27-10, par. 119. 

207. See Spaight, p. 286, quoting from the German official manua

208. FM 27-10, par. 119; Rasmussen, p. 36. 

209. FM 27-10, par. 122. 
A member of the armed forces of the detaining state may be 
 

guilty of military offenses which have no application to a pris- 

oner of war. For example, a prisoner of war is incapable of "de

serting the service of the United States" under Article of Tar 
 

210
 58 since he is not in the service of the United States. S imi ­

larly, it has been doubted whether a prisoner of war who threaten

a commissioned officer of the united States with a baseball bat 

could be convicted under Article of War 64 for "assaulting a 

superior officer" since the gravamen of the offense of insubordination is defiance of the military hierarchy to which the pris211 
 

oner of war is a stranger. 
 

2 12 
 The Convention distinguishes between "disciplinary" Pun-


213
 ishment and punishment resulting from "judicial" proceedings. 
 

"Disciplinary" offenses comprehend minor offenses or derelictions 

214 
 

not involving moral turpitude. "Judicial" proceedings relate 

210. AW 92 and 93, denouncing comon law crimes, are universally 

applicable.­ SPJGW' 1943/3029, February 26. 

211. Dicta, SPJGTb? 1943/3029, February 26; contra,. Spaight, p. 

286. 

212. FM 27-10 uses the word "summary" interchangeably with "disc ip linary" . 

213. See FM 27-10, par. 120. 
 

214. SPJGW 1943/3029, February 26. 
 
The detaining power is enjoined to "exercise the greatest leniency

in deciding whether an infraction committed by a prisoner of war 
 

should be punished by disciplinary action or judicial proceed- 
 

216 
 

ings. A prisoner may not be punished more than once for the 

same offense or charge. 217 Prisoners of war who have satisfied 
 

the penalty imposed on them, whether judicial punishment or dis- 
 

21

ciplinary, must not be treated differently from other prisoners. 
 

-

b. Disciplinary Punishment. The Convention provides that 

the maximum single sentence for a disciplinary offense or offenses 

219


may not exceed 30 days. When a new summary punishment is im- 
 

posed, a period of at least three days must intervene between each 

2. Flory, p. '91. See also FM 27-10,pars, 124 and 161, respec-

tively, where the terms "crimes or offenses" and "crime or 
 

an offense of municipal law" are used in connection with judicial 

proceedings. 
 

216. FM 27-10, par. 125. 
 

217. See Ramussen, p. 37. 
 

218. Prisoners who have been punished as a result of attempted 
 

escape may be subjected to special surveillance. FM 27-10, 

par. 121. 
 

219. See p. 98, infra, for further discussion. A prisoner sen- 
 

tenced at the same time to disciplinary punishment for 
 

several acts, connected or not, may not be sentenced to more than 

30 days. FM 27-10, par. 127. 
 
of the punishments, if 'one of them is ten days or more. 220 "Ar-


rest" is the most severe disciplinary punishment which may be 
 

221 
 

imposed on a prisoner 04war. "Arrest" is used in its most 
 

general sense and in contradistinction to "judicial" imprison- 
 

ment. It is the equivalent of "disciplinary detention"222 and 
 

223
 is broad enough to comprehend solitary confinement in a cell. 
 

Any aggravation of working conditions is forbidden as a discipli- 

nary measure. 224 Prisoners of yar undergoing disciplinary punish

ment shall not receive less favorable treatment than those of 
 

equal rank in the armed forces of the detaining state under the 
 

225


same circumstances. 
 

226 
 

Article 56 provides that in'no case shall a prisoner of 
 

war be transferred to a penitentiary to undergo disciplinary 
 

227
 punishment. Prisoners undergoing disciplinary punishnient must 

220. FM 27-10) par. 127. 
 

221. FM 27-10, par. 127. 
 

222. Rasmussen, p. 37. 
 

223. 	Compliance with FM 27-10) par. 129, would be necessary, SPJ

1943/4445, April 3. Solitary confinement will not be impose

punishment by courts-martial, Par. 102, MCM (1928). 

224. FM 27-10, par, 105. 
 

225. FM 27-10, par. 119. 
 

226. FM 27-10, par. 129. 
 

227. 	See AW 42, which prohibits confinement in a penitentiary unl

the sentence is more than one year. . 
but money and parcels may be withheld until the expiration of the 

sentence.228 Food restrictions as additional disciplinary punish

ment are allowed under the following conditions: If such restric

tions are applicable to the detaining power's own soldiers229 of 

equal rank230 for the same act and thenonly if the healti of the 

prisoner permits. Collective disciplinary measures affecting the 

231
 food of prisoners are prohibited. 
 

Prisoners given disciplinary punishment may not be deprived 
 

'232 
 

of the prerogatives attached to their rank. 
 

The opinion has been expressed that disciplinary punishment 
 

may be imposed upon prisoners 'of war in United States custody 

. only under Article of War 104. In this view the limitations of 

punishment prescribed by Article of War 104 would be applicable 
 

to prisoners of war. Thus, Article of War 104 would limit 
 

228. 	If the packages not delivered contain perishables, these 
 

shall be turned over to the camp infirmary or kitchen. FM 
 

27-10,par. 130. 
 

229. 	FM 27-10, par. 128. 
 

230. 	FM 27-10, par. 119. 
 

FM 27-10, par. 84. 
 

232. 	FM 27-10,par. 122. 
 

2 
disciplinary punishment to one week's duration without confine­


233 
 ment. . According to the British view, the tribunals which have 

power to impose disciplinary punishment are courts-martialand 


commanders of a camp or detachment.234 In World War I, the Briti

in order to accord prisoners equal treatment with members of its 

own armed forces, imposed disciplinary punishment on officer pris

235


oners by a military court composed of at least four officers.


233. SPJGW 1943/11081, August 12, 1943, where it is stated that 

"disciplinary punishment" as used in the Convention desig­


nates any form of punishment not imposed by a court-martial, i.e.

"company punishment". 


234. FM 27-10, pars. 118, 132; see Administration of Justice 


Among Prisoners of War by Military Courts, 1 Proceedings 


Australian-New Zealand Society of Int. Law 143 at 154. 


235. See 9 Grotius Society 131 at 141 (1924), where General Bel-

field stated the difficulties encountered by the British in 

applying disciplinary punishment under their military code to 

prisoners of war in the following language: "Here, however, a 

fresh difficulty intervened, as the British military code admits 

of summary punishment of private soldiers only, whereas in foreig

armies this may be inflicted on men of any rank, including officers. Summary punishments are also restricted in our service 

to an award of twenty-eight days' detention. The extension of 

our power of summary punishment of prisoners of war so as to make 

it conform to continental practice was out of the question, as 

this would have been a violatfon of the rule laid down in the 

first paragraph of this article /-8 7that prisoners 'shallbe 

subject to the laws, regulationsand orders in force in the Army 

of the State in the power of which they are:. In fact, we could 

comply with the second paragraph bmposing disciplinary punishment for escape7 only by committing a breach of the first * ++ * 

A military coGt, of which the President might not be under field 

rank, and three members, all of whom had held a commission for not 

less than three years, had to be assembled for the trial of anyone 

of higher grade -/Than a prfvate7.11
 ­
prohibitions which, unless confined by its terms to disciplinary 


236
 punishment, are equally applicable to judicial proceedings.


For example, the prohibition against corporal punishment or cru­


elty in any form.237 Several general principles are laid down 


with respect to judicial proceedings such as the right of a pris­


oner to be heard in his defense,238 and his right to assistance 


of counsel of his ~h,oice.~~~
 No prisoner may be compelled to 


240 
 admit his guilt. 


The Convention places a prisoner on a parity with a member 


of the detaining power's armed forces by providing that sentence 


may be pronounced only by the same courts and according to the 


same procedure.241 This principle of equality implies that the 


236. Rasmussen, p. 39. 


237. FM 27-10,par. 119; cf. AW 41 prohibiting cruel and unusual 

punishments, including flogging, branding, marking, or tat­


tooing on the body. 


238. FM 27-10, par. 134. 


239. . The detaining power is required to deliver to the protecting 

power, on request, a list of persons qualified to present 


the defense. FM 27-10,par. 135. 


240. FM 27-10, par. 134. 


241. FM 27-10,par. 136; cf. SPJGW 194313029, February 26, where 


it was stated prisoners of war and interned enemy aliens who 

are assimilated to them should be tried by general courts-martial 

rather than military commissions or provost courts since the 


latter two may depart in the rules of evidence and the mode of 


review from general courts-martial. 

punishment of prisoners shall not be more severe than that applicable to the members of the armed forces of the detaining 

242 

state for similar acts. The prisoner is given the same right 

of appeal from a sentence as individuals belonging to the armed 

forces of the detaining power. 243 Other safeguards include notification of trial to the protecting power at the latest at least 

244 

threeweeksbeforetheopeningofthetrial, theright of 

245 representatives of the protecting power to attend the trial, 

and the communication of the'sentence to the protecttng power 

246 

.immediately. A death sentence must not be carried out before 

the expiration of a period of at least three months after the 

receipt by the protecting power of a communication setting forth 

in detail the nature and cfrcumstances of the offense. No prisoner of war may be deprived of his right to complain to the 

242. Thus, the maximum table in the MCM, par. 104, being applicable to enlisted men in the &my of the United States shoul

govern the sentence imposed on enlisted men held as prisoners of 

war. SPJGW 1943/3029, February 26. 

243. FM 27-10, par. 137. 

244. FM 27-10, par. 133. 

245. The exception is the case where the trial must be secret in 

the interest of the sefety of the state. FM 27-10, par, 135

246. FM 27-10, par. 138. 
248

sentence of a tribunal or otherwise. 

A person who, prior to being captured, commits an act in 

violation of the laws of war, is not entitled to the privileges 

and safeguards accorded to a prisoner of war. 249 However, even 

a captured war criminal is entitled to a trial by a competent 

250 tribunal . 

-

d. Escape. Escape is a very natural act which is not con251 

trary either to military honor the laws of morality. 

Some writers have asserted that it is the duty of a prisoner of 

252 

war to escape if a favorable opportunity presents itself. Escape has been defined as the state of a prisonerss having placed 

himself beyond the immediate control of public 6uthorities of the 

253 detaining state without their consent. 

247. FM 27-10, par. 115. 

248. FM 27-10, par. 140. 

249, Colby, 23 Mich. L. Rev. 482 at 487; cP. SPJGW 1943/3029, 

February 26. 

250. FM 27-10, par. 356. 

251. Baker and Crocker, p . 66, citing Jacomet "Les Lois de la 

Guerre Continentale". 

252. 	 Davis, p. 315. 

253. 	 Cf. German view that the prisoner's intent must be \to avoid 

permanently the enemy control. Flory, p. 149. 
If an escape is successful, it is not punishable even if the 

prisoner be recaptured sub'sequently by the detaining power. A 
 

successful escape is one in which the prisoner succeeds in re- 
 

joining his army or leaves the territory occupied by the detain- 

254
 ing army. 
 

An attempt to escape or an escape (which is not successful) 

is an infraction of the disciplinary regulations of the detaining 

power and may be punished. The terms ",escape" or "attemp't to 
 

escape" are not defined by the Convention. By analogy to Anglo- 

American military law an attempt may 'be defined aa an overt act 
 

other than mere preparation towards accomplishing the purpose to 

a55 
 

escape. An attempt does not ripen into an escape until the 
 

prisoner has, momentarily at least, freed himself from the re- 
 

strain6 of the camp authorities, so, if the movement toward es- 
 

cape is opposed, or before it is completed an immediate pursuit 
 

ensues, there will be no escape until opposition is overcome or 
 

pursuit shaken off. 256 Unsuccessful escapes or attempts are 
 

254. FM 27-10, par. 123. 
 

255. Cf. par. 130b, MCM (1928). An attempt to escape was found 

where a prisoner began constructing a tunnel to be used for 

effecting an escape. Op. JAG, 1918, Vol. 11, p. 576. 
 

256. Cf. par. 139b, MCM (1928) . 
A prisoner of war may be fired upon 'and, if necessary, killed to 

prevent his escape. 258 Military necessity may justify preventive 

measures such as temporary confinement to frustrate a conspiracy 

to effect an escape.259 After an attempted or accomplished es- 
 

cape, the prisoner's co-conspirators who assisted in the escape 
 

260 
 

may incur disciplinary punishment only. A prisoner who has 
 

escaped or attempted to escape may be subjected to special sur- 
 

veillance but not deprived of other rights (guaranties) granted 
 

261 
 

him by the Convention. Collective punishment for individual 
 

262 
 

acts is forbidden. Where a prisoner commits a crime or offens

in the course of an escape, the escape is not considered an ag- 
 

263
 gravating circumstance. However, the crime or offense is puni

able on the same basis as if committed by a member of the armed 
 

257. FM 27-10,pars. 124, 127; Flory, p. 153. The penalty for 
 

an attempt to escape is disciplinary punishment only. Op. 
 

JAG, 1918, Vol. 11, p. 576; see p. 98, supra, for tribunals which 

may impose punishment. 
 

258. Spaight, p. 287. 
 

259. FM 27-10, par. 82; Spaight, p. 280. 
 

260. FM 27-10, par. 124; Rasmussen, p. 41. 
 

261. FM 27-10, par. 121. 
 

262. FM 27-10, par. 119. 
 

263. FM 27-10,par. 124. 
 
forces of the detaining power. Thus, a prisoner %of war who 

steals clothing to effect his escape is guilty of larceny if the 

265 

escape is not successful. 

Some doubt has been expressed with respect to the liability 

of a prisoner of war to punishment for a crime comitted in connection with a successful escape. Some writers have viewed such 

crime as being part and parcel of the escape and since the escape is not punishable neither is the incidental crime. 266 The 

contrary opinion is that a successful escape does not wipe out 

the incidental crime. If the latter position is adopted, the 

killing of a camp guard in the course of a successful escape may 

267 be murder. 

The question has also arisen whether the status of a prisone

, 

of war ends when the prisoner has left the control of the camp 

authorities and thrown off immediate pursuit, or whether it continues until he has quitted the territory of the detaining state. 

If the latter view be adopted, he would be guilty of murder if 

264. Rasmussen, p. 41. 

265. Bolls, The Peace Conference at the Hague, P . 147; Flor~, 

P. 155. 

266. See discussion, Flory, p. 1-36. 

267. Flory, p. 157. 
268 
 

territory of that state. 
 

Prisoners of war who escape in civilian clothes or dressed 
 

in the uniform of the detaining power are not spies if 'captured 
 

269
 before the escape becomes successful. 
 

A prisoner of war may not' be tried under Article of War 69 
 

for "escaping from confinement" since escape for him is not un- 
 

27

lawful and subjects him to no more than disciplinary punishment. 
 

-

e. Concurrent Jurisdiction of Civil Courts of Criminal 

Jurisdiction Over Prisoriers of War. Interned enemy civilians and 

prisoners of war who commit offenses against the. criminal law of . . 

the state where they are interned may, at the discretion of the 
 

271
 military, be turned over to the civil courts for trial. 

141-161. Release of Prisoners. --a. - End of War. Article 

75272 directs belligerents to include provisions with respect to 


268. .See Flory, p . 157. 

269. Air Power, p. 84. If there are special circumstances indi- 

cating that the prisoner was engaged in espionage he could 
 

be tried as a spy. 
 

270. SPJGW 1943/3029, February 26. 
 

C 

271. 	Schaff enius v. Goldberg (1916) , 1 K.B . 284; Dig. Op . JAG, 

1912, p. 1075. 

272. 	FM 27-10, par. 161. 
 
repatriation (i.e., the restoration of persons held as prisoners 

of war to the state to whom they belong) in general armistice 
 

agreements and if this be not possible, then they shall come to 
 

an agreement as soon as possible. The terms of the Armistice in 

World War I required the Central Powers to release allied pris- 
 

273


oners at once without reciprocity. German prisoners held by 
 

the Allies were released at the latest on the ratification of 
 

the peace treaties. 274 
 

The conclusion of a treaty of peace by belligerents tech- 
 

nically terminates the status of a prisoner of war as such. How-

ever, neither customary nor Article 75 of the Convention 
 

requires immediate repatrTation. The Conven-f;ion simply requires 

that repatriation be effected with the least possible delay after 

the conclusion of peace.' Until the return of the prisoner 'is mad

he rema-ins under the discipline and supervision of the detaining 

276 
 

power. Mo prisoner of war on whom disciplinary punishment has 

been imposed may be kept from repatriation because he has not 
 

277
 undergone punishment. 
 

273. 13 Am. J. Int. L. Supp. 99. 
 

274. Flory, p . 136. 

275. Hall, p. 598. 
 

276. Lauterpacht, p. 478; Hall, p. 598, 

277. Cf. FM 27-10,par. 126; Rasmussen, p. 49. 
 
ordinary crimes or offenses (i.e., crimes which in their nature 
 

are violations of municipal law) are pending or who are serving 
 

sentences for such crimes need not be repatriated but may be de- 
 

tained until the expiration of their sentences. 278 ~risoners of 
 

279


war undergoing judicial punishment ,of purely military offenses 

-

not also constituting an ordinary crime or offense may not be 


280 


detained after peace. Thus, a prisoner of war whobhas been 
 

punished judicially for failure to salute a superior officer of 
 

the detaining power should not be retained after peace to complete 

281 
 

his sentence. However, it must be remembered that many vio- 
 

" lation; of military law are essentially violations of municipal 
 

law, as for example, a conviction by a court-martial of a pris- 
 

oner of war for stealing. Persons serving sentences for war 
 -

278. Rasmussen, p. 50; cf . FM 27-10, par. 126. . 

-279. FM 27-10, par. 126, relates to repatriation during the con- 

tinuance of hostilities. 
 

280. Rasmussen, p . 52, Other interpretations are possible and it 

may well be that a detaining power would not release a prisoner who had committed a serious military offense. At the termination of the Franco-German War in 1871 Germany held that the 

pace did not operate in favor of offenders against military law. 

Phillipson, Termination of War and Treaties of Peace, p. 240. 

281'. Cf . Rasmussen, p . 52. 
crimes (i.e., violations of the laws of war) need not be repatriated on the signing of peace. All war crimes are punishable by 

death and the belligerent by being more lenient and imposing a 

lesser sentence may carry it beyond the duration of war. 282 This 

rule 	is especially applicable where the war crime is also a viola

tion of the ordinary law of all countries, such as burglary, rape

283 

etc. 

b. Return of Sick and Wounded. An obligation is imposed - 284 

by Article 68 of the Convention on the detaining power to send 

back prisoners of war, who are seriously sick and severely wounde

'to their own comtry regardless of ranks and numbers. The nature 

of the sickness requiring direct repatriation or hospitalization 

in a neutral country are to be agreed upon by the belligerents. 

In the absence of an agreement, the detaining state may 

-follow th

286 

model agreement285 annexed to the Convention. The Convention 

282. 	 Lauterpacht, p. 459; contra.,. Hall, p. 437. Prisoners of 

war charged with war crimes but not yet tried-and sentenced 

must be released unless express provisions to the contrary rebut 

the usual amnesty provision implied in a peace treaty. Lauterpacht, p. 476. 

283. 	 Cf. Garner, 14 Am. J. Int . L. 70 at 74. 

284. 	 FM 27-10, par. 141. 

285. 	 FM 27-10, par. 172. 

286. 	 The model agreement defines those who may be considered 

.seriously sick or wounded. However, there is no -

duty on a 

detaining state, in the absence of agreement, to follow it. 

SPJGW 1943/7668, June 1. 
agreement of the belligerents to examine prisoners of war to de288 

termine whether they ought to be repatriated. In the absence 

of an agreement between belligerents creating such a commission, 

the general duty imposed' on each detaining state to repatriate 

the seriously sick and wounded remains and presumably may be discharged by a unilateral selection and repatriation by the detain28 9 ing state. 

In World War I the belligerents reached agreements whereby 

sick and wounded prisoners were transferretl to neutral countries 

and interned there. The prisoners were selected by medical com- 

missions composed of medical men from neutral countries. 290 Agree

ments were also reached for the repatriation of prisoners who had 

been in captivity not less than eighteen .months and were at least 

2 91 forty years of age. These repatriations were reciprocal and 

2 9 regardless of rank or number. 

287. FM 27-10, par. 142. 

288. SPJGFT 194317668) June 1. 

289. Prisoners who are victims of work acci 

pr'ivileges of repatriation. FM 27-10, 

dent; 

par. 

enjoy the 

144. 

same 

290. Garner, Vol. 11, p . 55. 

2 Garner, Vol. 11, p. 55. 

292. Flory, p. 134. 
-

c. Exchange.- Exchange is not expressly mentioned in the 

293 Convent ion. An exchange results from an agreement between the 

belligerents whereby one of the parties releases prisoners of war 

in consideration of the release by the other. 294 The general 

rule for such an exchange is man for man, rank for rank, wounded 

2 95 for wounded, etc. However, the exchange may be on the basis 

of substituted values, that is, such a number of persons of inferior rank may be substituted as equivalent for one of. superior 

2 96 297 rank as may be agreed upon. Article 72 of the Convention 

contemplates the possibility of direct repatriation or interment in a neutral country of prisoners who are able-bodied but 

have been in captivfty for a long time. 

The ship which conveys prisoners of war from one belligerent pprt to another in pursuance of an exchange is known as a 

cartel ship. 298 A cartel ship while engaged in its spedial serv299 ice is deemed a neutral ship and is exempt from enemy capture. 

293. It was not expressly dealt with by the Hague Regulations. 

294. Hall, p. 434. The agreement is called a Cartel, 

293. FM 27-10, par. 158. 

296. FM 27-10, par. 159. 

297. FM 27-10, par. 145. 

298. Moore's Digest, Vol. VII, p. 226. 

299. Hyde, Vol. 2, p. 528. 
- - 

300

or munitions. A cartel ship is entitled to protection both 

301 in carrying prisoners and in returning from such service. 

-

d. Military Service After Repatriation or Exchange. Article 74 302 provides that "no repatriated person may be utilized 

in active military service". Seemingly, the language is broad 

enough to include prisoners of war who are repatriated by exchange 

agreement. This interpretation is open to doubt since the Convention does not expressly deal with exchanges. Spaight has 

stated that "there seems to be no ground in custom or logic to 

read such a condition /T.e., not to participate in the war7 into 

the agreement". 303 The Field Manual 

.304 

seemingly supports Spaigh

view in providing that the condition not to serve for a certain 

period may or may not be expressed in an exchange agreement. ATticle 74 would undoubtedly apply to the seriously sick and wounded 

, 

300. Hyde, vol. 2, p. 529. 

301. Hyde, Vol. 2, p. 329; Flory, p. 133. 

302. FM 27-10, par. 147. 

303. Spaight, p. 304. However, the Hague Regulations which were 

in force when Spaight commented upon the question contained 

no parallel article. 

304. FM 27-10, par. 158. 

I 
repatriated under the obligation imposed by the an

perhaps to able-bodied prisoners held in captivity for a long 

period. 306 This article does not prohibit all military service 

but only active military service. Thus, the use of a repatriated 

prisoner in purely noncombatant service of a humanitarian nature 

307 would not be forbidden. 

-

e . Parole. A parole is a promise, either written or oral, 

308 made by a prisoner of war to the detaining state by which in 

consideration of certain privileges and advantages, he voluntaril

pledges on his honor to pursue or fefrain from pursuing a particular course of conduct. 309 Though it is desirable that a parole 

3 1.0 	 311 * 'should be in writing an oral parole is equally valid. 
 

prisoner may be paroled for the purpose of returning to his state 

305. 	 FM 27-10, par. 141. 

306. 	 FM 27-10, par. 145; Lauterpacht, p. 305, footnote ?,-in com

menting on the repatriation of the able-bodied held in captivity for a long period states that such persons must not be 

employed on active military service. 

307. 	 SPJGIJ 194318113, June 16. 

308. 	 A civilian enemy internee is assimilated to a prisoner of 

war. Cf . SPJGW 1943/8113, June 16. 

309. 	 Hall, p. 431; Spaight, p. 290; Flory, p. 119. 

310. 	 FM 27-10, par. 149. 

311. 	 Davis, p. 318. 
3 12 

power orhemaybepermittedtoremainoutside ofa campwithout guard on his promise not to leave a specified portion of the 

detaining state. Other types of paroles have been used, for example, liberty to take exercise outside,of the camp without guard 

3 13 

on the promise not to escape. 

The Hague Regulation314 provides that the. detaining state is 

not required to assent to a prisonerss request to be released on 

315 parole and no prisoner may be compelled to accept such a release. If the law of the prisoner's country allows him to do so, 

and if he,accepts, any prisoner may be released on parole. In 

such case, both the prisoner of war and his government are under 

316 

a duty to respect the terms of the parole. 

accept * * * any service incompatible with the 

312. Edmonds and Oppenheim, par. 99, quoting form of pledge used 

by Japanese in Russo-Japanese War, 

313. Flory, p ..U1. 

314. FM 27-10, par. 154. The Geneva Convention of 

deal with release on parole. 

1929 does not 

315. An officer may not release a prisoner on parole without 

thority from his government. Flo~y,p. 120. 

au316. SPJGW 1943/8113, June 16. The Hague Regulation specifically 

provides the parolee's own government "is bound neither to 

require of nor 
 

parole given". FM 27-10, par. 148. 
 
It is essential to the validity of a parole that the prison

voluntarily consents or agrees to its conditions. Thus, the de- 

taining state has no right to order to free itself of prisoners 
 

to send them back on condition of not serving again if they do 
 

317


not agree to the condition. Similarly, no paroling on the 
 

318 
 

battlefield is .permitted 'or of any value since prisoners do 
 

not have sufficient freedom of mind dwing action to contract 
 

31-9
 such a pledge validly. 
 

The regulations and laws of some countries do not permit 
 

320
 captured members of their armed forces to give their paroles 
 

or the law of the prisoner's country may be silent on the sub- 
 

ject. In the latter case, if the prisoner gives his parole, his 

country may subsequently disapprove of it. In such circumstance

the prisonergs own country is bound to permit the prisoner to 
 

return' to captivity. If the former detaining state refuses to 
 

321
 take him back, he is released from his parole. 
 

317. FM 27-10,paro 152, provides in part: "No dismissal of larg

numbers of prisoners, with a general declaration that they 

are paroled is permitted or of any value". 
 

318. FM 27-10,,par. 152. 
 

319. Baker and Crocker, p. 76, citing Jacomet. 
 

320. The policy of the United States is to prohibit the giving 
 

of paroles by captured members of its armed forces. Sec. 
 

111, Cir. 400,WD, Dec. 10, 1942. 
 

321. Davis, p. 3-18; Bordwell, p, 243; see Moore9 s Digest, Vol. 
 

VII, p. 229, quoting Art. 131, G.O. 100 /i8637: "If the 
 

government does not approve of the parole, theparoled officer 
 
a parole, hfs government is not required to recognize the pa322 role . Several courses are open to the prisoner's state: re323 turning the paroled prisoner to the detaining state, punishing the prisoner who has given his parole contrary to national 

law, 324 or disregarding the parole. 325 So far as the released 

prisoner is concerned, he has given his personal pledge and is 

bound to observe it.326 If he is captured by the detaining state 

he may be punished and it is no excuse that his own government 

327 prevented him from complying with the parole. 

Noncomissioned officers and privates are not sllowed to 

pledge themselves, except through an officer, and even officers, 

322. The Hague Regulation states that "prisoners of war may be 

set at liberty on parole if the laws of their country allow

M 27-10, par. 148; see Spaight, p. 296. 

323. If the detaining state refuses to accept the returned prisoner, he would be discharged since the detaining state is 

bound to aatisfy itself that the prisoner has authority to give 

his parole. Spaight,.~. 296. 

324. Flory, p . 127. 

325. Bordwell, p. 243; Spaight, p. 296; Flory, p. 126. 

326. A parole given by a minor is valid and binding. United 

States ex re1 Henderson v. Wright, 28 F. Cas . No. 16777. 

327. Spaight, p . 296; Bordwell, p . 243. 
so long as a superior is within reach, can only pledge themselves 

with his permission. 328 Thus, in World War I two German noncommissioned officers, who had given their parole, escaped from 

Norway, where they were interned, in breach of their parole and 

Germany declined to return them on the ground that, not being 

officers, they could not validly give their parole, and that the 

neutral authorities were at fault in asking for, and accepting, 

32 9 thsir parole. On the other hand, some authorities contend 

that this rule is not one of fnternational law but a matter for 

cognizance of municipal law only. 330 1f the latter view is 

adopted, seemingly the parole must be respected though the released prisoner may be punished for violating the municipal 

331 law. 

Whether a commander of troops would have authority to give 

his parole on behalf of himself and his troops so as to bind the 

state and ths men under his command (without their consent) is 

328. FM 27-10, pars. 150, 151; Hall, p . 431. Art. 127, G.O. 100 

/i8637, characterized such paroles as void and subjected 

the in&viduals giving them to punishment as deserters. M~ore'

Digest, Vol. VII, p. 228. 

329. Air Power, p. 346. 

. . 

330. Flory, p. 125. 

331. If the released prisoner's government does not approve of 

the parole, it may return the prisoner into captivity, See 

Moore 's Digest, Vol. VII, p . 229;' Art. 131, G .O . 100 -/i8637. -
mander for his troops were valid and within his implied powers. 

Some writers have held such paroles.invalid in international law 

on the ground that the giving of .a. parole is a personal act in 

333 which the individual prisoner must concur. 

Spaight states that every parole implies the obligation not 

to assume any function which has a connection with military op334 erations. The work in which a prisoner released on parole my 

be employed depends on the form of the promise he has given. The 

usual promise is.not to bear arms against the government releasing 

him. The promise exacted from the prisoner may be not only to 

abstain from acts connected with the war but from engaging in any 

public employment. 335 The promise "not to serve during the existing war unless exchanged" refers only to active servi,ce in the 

field against the detaining power or his allies. The pledge does 

not refer to service in the zone of interzor such as recruiting, 

drilling recruits, fortifying places not besieged, quelling civil 

332, Of course it is assumed that the prisoner's state does not 

forbid the giving of paroles or expressly deny the commander 

such power. Baker and Crocker, p. 71, citing Halleck. 

333. See discussion, Flory, p. 130. 

33b. Spaight, p. 291. British officers who were paroled by the 

Boers, orally and in vague terms, were employed in technical 

or administrative duties in the military service at home. Spaight

Pa 292. 

333. Hall, p. 432; Spaight, p. 291. 
336 commotions, or to civil or diplomatic service. The pledge h 

"not to bear arms" does not prevent noncombatant military serv337 ice in the zone of interior. 

Paroles lose their binding effect upon the conclusion of 

peace. Thus, a parole given that the prisoner will never fight 

again against the detaining state is ineffective after the 

338 

peace. A prisoner on parole without guard under a promise not 

to escape may terminate the parole by surrendering with a.request 

for reinternment. 339 A parole is also terminated by a formal ex340 change of the paroled prisoner. 

A prisoner of war who has given his parole not to bear arms 

against the detaining state and is subsequently recaptured bearing arms against the detaining state or its allies forfeits his 

right to be treated as a prisoner of war. 341 The death penalty 

336. Hall, p. 432; Arc. 130, G.O. 100 n8637, Moore's Digest, Vo

- - VII, p. 228. 

337. SPJGW 1943/8113, June 16. 

338. Hall, p. 432. 

339. Flory, p. 128. 

340. FLory, p. 128. 

341. FM 27-10, par. 155. -
343
 trial' by a court. The Hague Regulation does not deal with 

violatoGs of paroles other than those recaptured bearing arms. 

However, a breach of parole is an offense against the laws of war 

and would be triable by a military court. The punishment inflicte

344 would depend upon the nature of the promise breached. 

162-163. Death in Captivity,. --The Convention345 obliges the 

detaining state to honorably bury a prisoner of war dying in captivity, to properly mark his grave', and to respect and maintain, 

it.346 A prisoner's will is to be received and drawn up by the 

authorities of the detaining power in the same way as for its own 

soldiers. The same rule is to be observed with respect to death 

certificates. 347 Article 4 1348 and Article 76349 when read together seemingly -place a duty on the detaining power to transmit 

342. Lauterpacht, p. 302. 

343. Bordwell, p. 244; ~i~i~, p. 123. 

344. Davis, p. 318. 

345. FM 27-10, par. 162. 

346. The Hague Conventions of 1899 and 1907 required that prisoners of war should be buried in the same way as soldiers 

of the detaining state, due regard being paid to rank and grade. 

Baker and Crocker , p . 102. 

347. FM 27-10, par. 162. 

348. FM 27-10, par. 114. 

349. F'M 27-10, par. 162. 
a prisoner's will to its proper d.estination immediately rather 

than after death as was the case under the Hague Convention. 350 

The Bureau of Information of the detaining state is charged 

with the duty of caring for the prisoner's personal effects and 

of transmitting them upon the conclusion of peace to the country 

351 interested. The balance of wages remaining to the credit of 

a deceased prisoner shall be forwarded through diplomatic chann

to his heirs. 352 The provisions of Article of War 112 with 

respect to the disposition of the effects of deceased persons 

have been applied, so far as pertinent, to the effects of deceas

prisoners of war and interned alien enemies. 353 

CHAPTER V 
 

SJCK, WOUNDED AND DEAD 
 

173-178. Sick, Wounded and Dead.--a. General Rules. The -

Geneva Convention of 19291

relating to the amelioration of the 

350. 	 Cf. Rasmussen, p. 48; Flory, p. 141; cf . Dig. Op. JAG, 191

40, Const. 11, (4), 383.7, July 29, 1919. 

3 	 FM 27-10, par. 163. 

352. 	 FM 27-10, par. 107. 

353. 	 Dig. Op-. JAG, 1912-40, Const. 11, (It), 383.7, July 29, 191

Chapter V 

1. 	 FM 27-10, pars. 173-201. 
2 

in this chapter as the Convention. This Convention deals pri- 
 

marily with the sick and wounded during the period of active 
 

combat as distinguished from their'treatment during internment. 
 

The latter phase is the subject-matter of the Geneva Convention 
 

of 1929 relative to the treatment of prisoners of war. 

3 
 

The sick or wounded military personnel and other persons 
 

officially attached to the armies of the enemy must be respected, 

protected, and cared for, under ill circumstances, without dis- 
 

tinction of nationality, by the belligerent in whose power they 
 

4 
 

are. It is for the sick and wounded who have ceased to resist 
 

5 that the Convention requires respect, protection, and care-. 
 

The Convention would not extend to inhabitants or other persons 
 

not officially attached to the armies who pay be accidentally 
 

6 
 wounded. Its privileges would apply to members of a volunteer 
 

7 8 
 

corps, members of a levee en masse, and persons who follow the 
 

2. Des Gouttes, p. 23. 
 

3. FM 27-10,par, 70, et seq. 
 

4. FM 27-10, par. 174. 
 

5. Spaight, p. 421. 
 

6. Hyde, Vol. 11, p. 353, quoting U.S.R.L.W., 1917. 

7. FM 27-10, par. 95. 

8. FM 27-10,par. 92. 
army without directly belonging to it. The word "respected" 

10 

means that the wounded shall not be maltreated, intentionally 

injured or attacked. "Protected" implies an affirmative obligation to render aid and it includes the duty of shielding the 

11 

wounded from insults and public curiosity. The belligerent in 

whose power the wounded are must care for them on an equal basis 

12 

with its own wounded. 

An obligation is imposed on a belligerent, who is compelled 

to abandon his wounded to the enemy, of leaving behind with them 

a portion of his medical personnel and necessary materiel to 

13 assist in caring for them. This duty is not an absolute one 

It 14 but is to be discharged "so far as military exigencies permit.o 

If a belligerent should improperly abandon his wounded without 

9. FM 27-10, par. 76~;see Sordwell,, p. 249. 

- 10. Whenever "wounded" is used it includes "sick". 

11. Des Gouttes, p. 12. 

12. Des Gouttes, p. 13. 

13. FM 27-10, par. 174. 

14. "Necessarily the commander of the army * * * must determine 

what the precise exigencies of the situation permit him to 

do with regard to leaving his medical personnel * * *I1, U .S .R.L.W

1917, quoted in Hyde, Vol. 11, p. 353. See, however, Des Gouttes

p. 16, who contends that a commander cannot withhold his medical 

personnel for future use; that if he should run out of such personnel, he should appeal to the charitable zeal of the inhabitants
15
 duty of rendering care and treatment. 
 

The sick and wounded of an army who have fallen into the 
 

hands of the enemy are prisoners of war, and, subject to the care 

that must be given them, are entitled to all the privileges of 
 

16 
 - that status. The Convention further providgs that belligerents 

may make such arrangements beyond existing obligations for the 
 

17
 benefit of wounded prisoners as they may see fit. 
 

After every engagement the commander in possession of the 
 

field must have search made for the wqunded and dead and must 
 

1

take measures to protect them against robbery and ill-treatment. 

This article imposes a duty to search for, collect, and protect 
 

15. Des Gouttes, p. 17, The retreating army is to blame 'if it 
 

has abandoned such large numbers of the wounded without ade- 

quate medical personnel that all efforts of the adversary cannot 

provide sufficiently for their treatment. Spaight, p. 426. 
 

16. FM 27-10,par. 175. A wounded prisoner of war may be placed 

under surveillance. Des Gouttes, p. 21. 
 

17. See p. 109, supra, for the obligation imposed on a belliger- 

ent to repatriate the seriously sick and wounded, 
 

The report of the United States Delegation stated with respe

to a, substantially similar clause in the 1906 Convention that the 

"commanding generals" of the opposing armies could enter into 
 

cartels for the return of the wounded to their own lines at the 
 

close of the battle. Foreign Relations of the United States, 
 

1906,Part 11, 1548 at 1557. 
 , 

18. FM 27-10,par. 176a. - The former Convention did not include 

the term "dead". 
 
the wounded and dead, thou@;h it does not make the occupant an 
 

19
 insurer against all crimes on the battlefield. The customary 

rule also places the duty of burying the dead on the belligerent 

in possession of the field." Marauders of the dead and wounded, 

whether civilians or of the armed force, are to be promptly ap21 

prehended and punished by military trtbunal for their offenses. 

There are times when the wounded and dead who have fallen 

between the opposing lines cannot be removed because tactical 

considerations require the continuation of fire or the prevention 

of enemy search parties from approaching the adversary's line and 

22 

determining the state of his defense. Hence, the Convention 

23 provides "whenever circumstances permit", a local armistice or 

cessation of fire shall be arranged to permit the reciprocal 

24 

search and removal of the wounded remaining between the lines. 

-

b. Treatment of Wounded and Dead. Article 4 of the Con25 vention enumerates in detail.the obligations that belligerents 

19. Bordwell, p. 252. 

20. Spaight, p. 431. 

21. FM 27-10, par. 176b. -

22. Spaight, p. 428. 

23. FM 27-10, par. 176. 

24. Des Gouttes, p. 29. 

25. FM 27-10, par. 177:. 
26 

field. They are required to inform each other of the sick, 

wounded, or dead collected or discovered, together with information which may serve as identification. In World War I, the 

British Brisoners of ).Jar Information Bureau in London received 

from its sections at base points a return stating as completely 

as*possible, tfie name, rank, regiment, date, place, and cause of 

death, and any personal effects or belongings found in possession 

of the enemy dead. The return was.accompanied if possible by the 

actual discs and effects. The lists of the dead were then forwarded -to the enemy government. On the other hand, the personal 

effects of the enemy wounded or dead found on the battlefield 

were not transmitted by the Bureau to the enemy government until 

27 the conclusion of the war. 

Belligerents are under a duty to make honorable disposition 

of the enemy dead within their lines. 'such disposition should 

normally be by burial, and the graves should be marked so that 

they may be located again and should be respected. Cremation is 

permissible if that is the method of disposition of the dead in 

26. 	 See 	FM 27-10, pars. 162, 163, for similar provisions for 

prisoners of war dying during internment. 

27. 	 prisoners of War Information Bureau in London, Rosborough, 

P* 23. 
use in the enemy's country or if necessary for sanitary reasons. 

In the Russo-Japanese War, the Japanese buried the Russian dead 
 

as was the Russian custom though its own practice was to cremate 

28 the dead. A careful examination is required prior to internment or cremation in order to verify identity and death. One hal

of the identity tag, or if duplicate tags are worn, one of them, 

is to remain attached to the body of the dead so that it may be 

identified if later exhumation is necessary. Burial of the dead 

29 should be in individual graves if possible.. Internment in a 
 

common grave is permissible when military exigencies require, pro

vided the bodies are properly marked by tags or otherwise. Grave 

registration services are to'be officially established, and bel- 

ligerents shall exchange lists of graves and of the dead in their 

cemeteries and elsewhere at the end of hostilities. 
 

-

c. Ownership of Personal Effects. By customary internation

a1 law, all enemy property, public or private, which a belligeren

seized on the battlefield was booty and became the property of th

30 
 captor. According to a modern authority this rule has been 
 

28. 	 Spaight, p. 431. Cremation may be required for reasons of 

hygiene. See Spaight, p. 432, for historical example. 

29. Takahashi, International Law Applied to the Russo-Japanese 

War, p . 149; cf. Des Gouttes, p. 34. 

30 	 Lauterpacht, p . 310, 
the Prisoner of War Convention of 192g31 and Article 4 of the Red 
 

32
 Cross Convention of 1929. Under this view, all effects and 

obJects of personal use found upon the dead, wounded, and prisoners of war are not legitimate booty and may not be confiscated 

unless they fall within the exceptions hereinafter stated. "Arms

horses, military equipment and military papers"33 may be confis34 .cated though they are private property. Similarly, private 

means of .transpoyt used by an enemy on the battlefield such as 

carts and other vehiclks may be ~onfiscated.~~ This interpretation limits Article 4 of the Red Cross Convention of 1929, which 

places on belligerents the duty of.collecting and sending to each 

other -all articles of personal use found on the field of battle 

or the dead, by the exceptions stated in Article 6 of the Prisoner

of War Convention of 1929 with respect to "arms, horses, military 

36 equipment and military papers" . 

31. FM 27-10, par. 79. 

32. FM 27-10, par. 177; Lauterpach-b, p. 310. 

33. FM 27.-lO, par, 79, enumerates only "arms, etc ," but saddles 

and stirrups and the like go with the horses, as ammunition 

goes with the arms, Lauterpacht, p. 314. 

34. Air Power, p. 329. 

35. Lauterpacht, p. 314. 

36. see p. 59, supra. 
Illustrative case. -­

In 1918, s British officer in France possessed as 

his own property a leather bag of unusual shape, design 

and marking. In the course of military operations in 

France, the British forces with which the officer served, 

hastily abandoned a position in which they were promptly 

succeeded by German forces. The bag of the officer was , 

left behind and seized by the German forces, The bag 

was sold to Y, a commercial traveler, who bought it in 

Berlin. Several years after the war the ex-officer 

recognized. his bag on a boat from New Haven to Dieppe . The ex-officer could maintain a possessory action for 

,the bag since he had not lost his property in it. A 

contrary conclusion would be justified if the bag were 

"military equipment". 3 7 

Public enemy property found or seized on the battlefield is still 

38 legitimate booty. Legitimate booty belongs to the capturing 

39

state and not to the individual soldier. 

37. It is.assumed that no difficulties with respect to the effect of a bona fide purchase or of the statute of limitations exist. Manley 0. Hudson, who relates the facts in 26 Am. 

J. Int. L. 340, reaches an opposite result. He points out that 

Arts. 4 and 14 of the Hague Regulations of 1899 and 1907 are 

limited to the protection of prisoners of war and that Art. 53 

of those regulations does not apply to the conduct of an army 

engaged in combat but only to an army of occupation, Judge 

Rudsonfs discussion did not purport to cover the Red Cross Convention of 1929, especially Art. 4. \ 

38. The restriction in Art. 53 of the Hague Regulations that 

only certain enumerated movable property belonging to the 

state and such other state property as may be used for military 

operations may be confiscated, does not apply ,to state property 

found or seized on the battlefield, but only to occupied territory. 

39. SPJGW 1943/6501, May 12. 
formations are establishments, whether fixed or movable, which 
 

are provided by public appropriation or private charity for the 
 

treatment of the sick and wounded in time of warO4O Article 6 of 

41 
 

the Convention requires that both mobile sanitary formations 
 

and fixed establishments belonging. to the sanitary service are to 

be "respected", i.e,, not to be fired upon; and "protected1' after- 

42 
 

wards in the discharge of their duties. The Convention dis- 
 

tinguishes between "fixed establishment~" and "mobile sanitary 
 

units". The distinction is of importance as will be shown later. 

Two conditions must coalesce in order that a sanitary unit 
 

4

be considered mobile: (1)it must be susceptible of being moved, 

44 
 

and, (2) it must accompany troops in the field, The words "mo- 

bile sanitary formations" include by way of illustration: (1) 
 

40. Report of American Delegation to Second Geneva Conference, 
 

Foreign Relations, 1906,Part 11, 1548 at 1555. Holland, 
 

p. 309 used the term "mobile medical units" in preference to 

"movable sanitary fomnations" . 

41. FM 27-10,par, 179. 
 

42. Holland, p. 30. 
 

43. Des Gouttes, p.. 39. 
 

44. The test, says Spaight, is whether the hospitals or ambu- 
 

lances actually accompany the troops, whether they move as 

part and parcel of the moving fighting body, Spaight, p . 437. 

Cf, par. 4b, AR 40-580,June 29, 1929,which states'that "mobile 

hospitals are provided to meet the needs of troops in the field 

or in campaign where it is impracticable to establish fixed has,. 

pitals. They also serve as relay points in the evacuation of 

patients to fixed hospitals." 
regimental equipment; (2) ambulance units; (3) hospital trains; 

\ 45 (4) hospital boats; (5) Red Cross 'transport colms. The Unite

States army hospital organization is .divided into two categories: 

(1)the mobile hospital (mobile sanitary formation) located in 

the combat zone, and, (2) the fixed hospital (fixed establishmen

46 
 

located in the zone of communications or at a base. The types 

of mobile hoqpitals are: clearing hospitals, surgical hospitals, 

47 evacuation hospitals, and convalescent hospitals. The fixed 

48 

establishments are the station hospitals and general hospitals. 

A station or general hospital, although actually movable, is a 

49 fixed establishment. Conversely, a hospital opened permanently 

and in a solidly constructed building, i.e., immovable, would be 

50 

a fixed establishment though located in the zone of combat. .Th

45. 	 Hyde, 'Vol. 11, p . 355, quoting U .S .R .L .W.,1917 This 'is 

not an exhaustive lfst. 

46. 	 See par. 4a, - AR 40-580, June 2.9, 1929; cf, Spafght, p 438. 

47. 	 See par. 2b(2), -	 AR 40-580, June 29, 1929. 

48. 	 Par. 2b, - AR 40-580, June 29, 1929. 

49. 	 Hyde, Vol. 	11, p. 355, quoting U.S.R.L.Wa, 1917; see also 

Holland, p. 30. 

50. 	 Des Gouttes, p. 39. 
tablishments do not cease merely because no sick and wounded are 

in them at the particular time. Thus, empty ambulances which 
 

have completed their duty and are returning to their troops are 

51
 to be respected and protected. 
 

Sanitary establishments do not have an absolute immunity 
 

under all conditions. Such establishments cannot claim immunity 

where they are so numerous or located in such a ms,nner as ta int

fere with legitimate military Thus, in the Russo- 

Turkish War, the Turks complained that Russian gunners shelled 
 

hospitals in Rustchuk in 1877. This was considered unavoidable 

because the hospitals were located in the center of town, so tha

' 

to spare the hospitals, would mean foregoing hostilities. 53 Sim

larly, locating a hospital near munition dumps, gun batteries or 

in buildings of military importance such as a railway station, 
 

would deprive the establishment of immunity against the demands 

54
 of military necessity. The use of a sanitary formation for 
 

51. Holland, p. 30; Des Gouttes, pa 40; see p . 138, infra, 

52. Hyde, Vol. 11, p. 355. 
 

53. Spaight, p. 182. 

54. Cf. Air Power, p. 264; Spaight, p. 183. 
 
55 military purposes is improper, Such acts as sheltering combatants, carrying on espionage, storing arms and ammunition, maintaining wireless apparatus. or searchlight batteries, are in3wio

to the enemy and deprive the sanitary formation of immunity,56 

57 However, a sanitary fomtion does not forfeit its protection: 

(1)because the personnel of the formation is armed and uses its 

58 
 

arms in self defense, or in defense of the wounded; (2) because

in the absence of armed hospital attendants the formation is 

59 guarded by an armed detachment or by sentinels; (3) because, 

hand arms and munition taken f~om the sick and wounded and not 

yet turned over to the proper service are found, and (4) because 

there is found in the formation personnel or materiel of the 

60 

veterinary service which does not integrally belong to it. 

55. 	 FM 27-10, par. 180. 

56. 	 Air Power, p, 265; Des Gouttes, p 44, 

58. 	 The arms may not be used against legitimate combatants, but 

only against marauders and the like, FM 27-.lo, par, 181, 4b

-

59. 	 If such detachment engaged in combat using the sanitary establishment as cover, the exemption would be fol-feited. 

60. 	 This was introduced by %he United States Delegation inasmuch 

as the veterinary service is under the control of the Medica

Department in the United States Army, Des Gouttes, p. 46. 
61 
 

ments.--The personnel engaged exclusively in the removal, tran

portation and treatment of the sick and wounded as well as with 

the administration of sanitary formations and establishments are 

62 
 entitled to be respected and protected. The respect and pro- 

tection accorded them means that they must not knowingly be at- 

tacked, fired upon, or unnecessarily prevented from discharging 

63
 their proper functions. Such personnel do not have complete 
 

freedom of movement in the combat zone for the purpose of col- 
 

lecting or removing sick and wounded. Thus, a belligerent'desir

ing to conceal the state of his defenses from the enemy, may 
 

command approaching sanitary personnel to halt, and if they per- 

sist in approaching despite the comand, may lawfully fire upon 

64 
 them as an extreme measure. 
 

Chaplains attached to the army are similarly entitled to be 

65
 respected and protected. Soldiers -from other branches employe

61. The term "exclusively" is used, in contradistinction to "oc- 

casionally". Des Gouttes, p. 49. 
 

62. FM 27-10,par. 182a. Soldiers permanently attached to sani

tary formations orf ixed sanitary establishments as admin- 

.istrators, accountants, cooks, domestics, or drivers, are entitl

to the same privileges as nursks and medical officers. Des 
 

Gouttes, p. 49; cf. Edmonds and Oppenheim, par. 185, footnote (b

63. FM 27-10,par, 182b. 
 -

64. Spaight, p. 457; Edmonds and Oppenheim, par. 199. 
 

65. FM 27-10,par. 182a. Ministers not officially attached to 

the army are not entitled to the benefit of this article. 
 

Des Gouttes, p. 49. 
 
as guards for saniltary units are treated as sanitary personnel, 
 

if they have written orders of competent authority showing such 
 

66 
 

status and have not during such status acted as combatants, 
 

Similarly, a soldier temporarily attached as an auxiliary attend- 

ant or litter-bearer in the removal, transportation, and treat- 
 

ment of the wounded is treated as part of the sanitary personnel 
 

if three conditions concur: (1)prior and special instruction 
 

has been given him for the task;67 (2) he has identification 
 

68 
 

documents, and, (3) he is performing sanitary functions at the 
 

69
 time of capture. 
 

If sanitary personnel and those assimilated to them fall into 

the hands of the enemy, they are not to be treated as prisoners of 

70 

war. Article 12 places a duty on the enemy not to detain themo 
 

66, FM 27-10, par, 181, 4c, The lack of written orders from competent authorities wiil subject the soldier to treatment as 

a prf soner of way. Cf. Spaight, p . 440, 

See, however, Des Gouttes, ppo 44, 112, 117, who contends 
 

that the deletion of Art. 9, par, 2, of the Geneva Convention of 
 

1906,which expressly assimilated such guards to sanitary per- 
 

sonnel, changed the former rule; that such guards when captured 
 

are prisoners of war, 
 

67. No definite period of instruction is required though there 

must be special preparation for the temporary rolea Des 
 

Gouttes, p. 54. 
 

68. This is to prevent fraud from being perpetrated on the captor 

state. Des Gouttes, p, 53. 
 

69. FM 27-10, par, 182. Soldiers from other branches employed 
 

as orderlies for sanitary units are treated as sanitary per- 

sonnel if they have written orders of,competent authority showing 

such status. FM 27-10, par, 181, he,
 -
sent back to the belligerent to whose service they are attached 

as soon as a way is open for their return and military exigencie

permit. There may be military objections to allowing such personnel to return to their army imediate1y;for example, they ma

- have acquired information which would be of value to the adver71 

sary. Until returned, they are to continue to carry bn their 

duties under the direction of the captor, preferably to care for 

the wounded of their own army. So long as they are detained, 

they must be given the same maintenance, quarters, pay and al

lowances as the corresponding personnel in the army of the enemy

On their departure they must be allowed to takk with them the ef

fects, instruments, arms, and means of transport belonging to 

73 them. 

71. 	 Reasonable measwes may be taken to prevent such personnel 

from acquiring military info-tion by restricting their ac

tivities. FM 27-10, par. 186b. -

72. 	 FM 27-10, par, 187. The personnel of volunteer aid societf

are entitled to maintenance, quarters, pay and allowances. 

73. 	 The effects, instruments, etc., which they must be allowed 

to take with them are such as belong to them personally and 

not to the state. Des Gouttes, p a 85. Sanitary personnel attached to a mobile sanitary formation would also take with them 

the materiel of the formation whfch was being returned at the 

same time. See p. 138, infra. 
The personnel of volunteer aid societies, duly recognized 

74 and authorized by their government, employed in the same functions as the sanitary personnel are privileged to the same extent 

75 

as the permanent sanitary personnel, provided such pel-sonnel ar

76 subject to military law and regulations. Each belligerent must 

notify the other, -before employing them, the names of the societies which it has authorized to render assistance to the of7 7 

ficial sanitary service of its armies. 

Sanitary personnel and those assimilated to them while temporarily detained by the enemy are, acco~ding to Spaight, subject 

78 

to control of the enemy for the purposes of discipline. Though 

the problem is not free from doubt, it would seem that such 

74. The American National Red Cross is the only such volunteer 

society authorized by the United States. See FM 27-10, 

par. 184. - 75. FM 27-10, par. 183. 

76. Personnel of the American National Red Cross are subject to 

military law when accompanying or serving with the armies 

of the United States in the field in time of war. AW 2; Dig. 

Op. JAG,.1912-40, sec. 359(14). 

77. FM 27-10, par. 183 See FM 27-10, par 185, as to volunteer 

societies of neutrals who with the prior consent of their 

own government and the belligerent they are serving, are placed 

in the same status as a belligerent's own voluntary societies. 

78. Spaight, p. 446. 
79
 the armies of the enemy state. 
 

The protection and special status given sanitary personnel 

are conditioned on their not acting in a hostile manner toward 
 

the enemy. A medical officer or chaplain who participates in 
 

the hostilities by leading an attack or participating in one, 
 

forfeits his imunities. Thus, if before participating in such 

hostilities a medical officer removed his Red Cross brassard, he 

would be a combatant and, if captured, a prisoner of war. How-


ever, if he engaged in hostilities while wegring the Red Cross 
 

brassard, he would be guilty of a misuse of the Red Cross emblem 

80 
 

and could be punished as a war criminal. 
 

81 
 

188-190. Buildings and Materiel.--Article 14 states that 

82 
 mobile sanitary formations that fall into the power of the ene

83 shall not be deprived of their: (1)materiel, (2) their means 

79. Cf. FM 27-10, par, 118. In the Russo-Japanese War, Russian 

sanitary personnel were tried bx the Japanese under the 
 

Russian code and, at times, under their own code. Spaight, p. 
 

446. 
 

80. Edmonds and oppenheim, pars, 186,441-442; ske also FM 27-1

par. 347. 
 

81.-FM 27-,lo, par, 188. 
 

82. It is the mobile sanitary formation of the army that is re- 

ferred to here. 
 

83.. Movable sanitary formations generally contain tents, beddin

ambulances, surgical instruments, medical and hospital sup- 

plies. 
 
8

of transportation, and., (3) their conducting personnel (drivers). 

These units are to retain their materiel and means of transportation "whatever may be their nature", i.e., although portions of 

it have been borrowed from military units or obtained by requisi85
 tion from the inhabitants of the country. Military vehicles 


not part of thk sanitar; service, i.e., not specially fitted for 


hospital uses, and civilian means of transport, the temporary use 

of which were obtained by requisition, are aubject to special 


rules when used in the evacuation of the sick and wounded. This 


86 


will be dealt with later. 


Competent.militaryauthority is authorized to make use of 

87 88 the mobile sanitary unit .inthe care of the sick and wounded. 


The personnel, materiel and means of transport are, so far as 


possible,,to be returned at the same time. They must be returned 

to the adversary as soon as the route for their return is open 


84. Des Gouttes, p. 9. 


85. Holland, p, 33; Des Gouttes, p'. B. 

86. See p. 142, et seq., infra, 


87. Materiel, means of transportation and the drivers are all 

on the same footing. Des Gouttes, p. 55. 

88. In case of necessity, the capturing commander may use some 


of the materiel for the benefit of his own wounded. Hol­


land, p. 33. 

in which the immediate return of the personnel is feasible but 
 

the materiel cannot be dispatched because of physical or other 
 

90
 difficulties, e.g., heavy equipment and poor roads. 
 

It must be observed that the fixed establishment dealt with 

in this Convention is the military hospital and not a civilian 
 

hospital owned by the state. The civilian hospital is the sub- 

91
 ject matter of the Hague Regulations, Articles 27 and 56. 
 f 

Fixed establishments, unlike mobile sanitary formations, are un-

able to pack up and accompany the army they are attached to and 
 

92
 follow it. When the enemy occupies the territory, the fixed 
 

establishment and its materiel are under his control and are "su

Ject to the laws of Specifically, if the establishment 

houses no sick and wounded, it may be seized and its materiel 
 

94
 confiscated. So long as the establishment contains sick and 
 

95 
 

wounded, it may not be diverted from itsamedical purpose. The 

demands of "urgent military necessity" will permit the use of 
 

89. FM 27-10, par. 186. 
 

9.Des Gouttes, p. 97; cf. Spaight,.~. 448. 
 

91. FM 27-10? pars. 58, 318; Des Gouttes, p. 99 . 

92, Spaight, p. 448. 

93. FM 27-10, par. 189. 
 

94, Des Gouttes, p, 100, 

Des. Gouttes, p . 100. 
the establishment to be diverted from medical purposes only if 

prior arrangements are made for the sick and wounded. Such a cas

of urgent military necessity would arise if the occupied ter- 

\ 

ritory were attacked and it became necessary to utilize the build

96 ing for purposes of defense. 

The buildings and materiel of aid societies are private 

97 98 

property and, as such, mht be respected. It may be requisitioned only in case of urgent necessity and only after arrangements have been made for the sick and wounded. If requisitioned, 

payment must be made in cash or a receipt given, and the payment 

99 of the amount due is to be made as soon as possible. Some 

doubt exists with respect to the treatment to be accorded materie

of aid societies found in mobile sanitary formations. One view 

is that such materiel is part of the sanitary formations and unde

100 

Article 14 must be dealt'with on the same basis as materiel of 

101 

the state in such a formation, that is, returnedo The BritFsh 

96. Des Gouttes, p. 100. 

97. FM 27-10, par. 190. 

98. FM 27-10, par, 323. 

99. FM 27-10, par. 335. 

100. FM 27-10, par, 188. 

101. Des Gouttes, pp. 94, 103; Renault quoted fn Spaight, p. 449
102 

erty and subject to requisition. 

103 191. Sanitary Transportation. --Article 17 deals 'with 

vehicles equipped for evacuation, 	that is, 	sick and wounded "in 

104 

the course of conveyance". Such vehicles, whether proceeding 

singly or in convoy must be treated in the same way as mobile 

sanitary units, subject to the rules stated hereafter. The enem

f 

intercepting such vehicles traveling singly or in convoy may sto

them and break up the convoy if required by military necessity, 

provided he takes charge in all cases of the sick and wounded wh

are in it. The enemy may use intercepted vehicles for sanitary 

needs exclusively and then only in the lector where they were 

intercepted. As soon as these vehicles are no longer required 

for their local mission they are to be returned in accordance 

with the conditions stipulated for the return of mobile sanitary 

105 

formations. A mixed convoy made up of the sick and wounded 

and troops is not an evacuation convoy but a troop train. Such 

102. Edmonds and Oppenheim, par. 209. 

103. FM 27-10, par. 191. 

104. Holland, p. 35. 

105. See p. 139, et seq., supra. 
a group is not privileged to fly the Bed Cross flag nor is it 
 

106 
 

entitled to the protection of the Convention. 

, The personnel of the evacuation convoy may belong to sanitary 

units or volunteer aid societies;107 in both cases they are to be 

108 returned and not treated as prisoners of war. Military personnel lent for transport purposes (i,e., not belonging to the 

sanitary service) are entitled to be returned under the same conditions as sanitary personnel provided they are in possession of 

109

a regular order detailing them to this duty. Civil personnel 

whose services have been requisitioned for the convoy are to be 

110 

released unless requisitioned again by the captor. There is 

the duty of restoring all means of transportation which are -especially organized for evacuation and attached to the sanitary 

service, for example, hospital trains. In other words, if the 

t 

means of transportation belongs to the sanitary service of the 

106. 	 It is -not a violation of the Convention for a belligerent to 

place the sick and wounded in a troop train; but it is a 

violation for such a train to fly the Red Cross flag. Spaight, 

p. 452. 

107. 	 FM 27-10) pars, 183, 185. 

108. 	 Drivers permanently attached to sanita~y formations are entitled to the same treatment. See p. 134, et seq., supra. 

109. 	 It must be noted that this is a lfmitation on Art. 14, FM 

27-10, par. 188, which requires the return of the conducting 

personnel of mobile sanitary formations. Des Gouttes, p. 112. 

110. 	 Holland, p. 35; see also Des Gouttes, p. 115; p. 48, supra. 
the yanitary service for fitting up ordinary vehicles, trains an

bther means of transport for the evacuation of the sick and , 

wounded, is'exempt. Military means of transportation not belong

ing to the sanitary service but borrowed from military units are 

112 
 subject to capture as booty. Generally, this latter moup 
 

would comprehend means of transportation belonging to a belliger

113 
 

ent but not especially fitted for sanitary use. 
 

All means of transportation obtained by requisition and use

. 	for the evacuationof the sick and wounded such as ordinary rail

way trains and river boats, or commercial vessels temporarily 

utilized for the conveyance of the sick and wounded, are sutject 

114 
 

to the general rules of international law. ~hus, by way of 
 

illustration, if the belligdrent intercepting such a convoy is 
 

in occupation of enemy territory, then these means of transport 

115 
 

may be seized by him under Article 53 or requisitioned under 

111. 	Holland, p, 35; for vehicles belonging to volunteer aid 
 

societies, p. 141, supra. 
 

11 	
 Cf. Hyde, Val, 11, p. 385. 
 

114 FM 27-10,par. 191;Report of United States ~elegation to 

, the Geneva Conference of 1906,Foreign Relations, 1906,Pa

2, P. 1557. 

115 	 a FM .27-10,par. 331.
116 
 Article 52 of the Hague Convention, or, in default of either 
 

117 
 

of these methods, returned to the owners. 
 

Medical stores, drugs, etc., except those held by a mobile 
 

sanitary unit or a convoy of evacuation, are not protected by 
 

the Convention and are subject to confiscation as legitimate 
 

118 
 

booty. 
 

The Convention makes no specific provision with respect to 
 

the evacuation of the sick and wounded from besieged places or 
 

forfr?sses. A commander of a besieged place has no war right to 

relieve the pressure on his resources by sending out his wounded 

nor does it entitle the besieger to increase that pressure by 
 

sending a convoy of wounded into the place which he is besieg- 
 

119
 ing 
 

12 Sanitary Aircraft.--Airc~aft used as a means of sani- 

tary transportation enjoy the protection of the Convention during 

such time as they are reserved exclusively for the evacuation of 

sick and wounded and for the transportation of personnel and 
 

116. FM 27-10,par. 335. 

117. Des Gouttes, p.115, . 

11.9. Spaight, p. 449; Edmonds and Oppenheim, par. 208, Stores, 

drugs, etc., part of a "fixed establishment" and necessary 

for the treatment of the wounded would be protected. Des Gouttes

p . 100; see also p. 140, supra. 

119. Holland, p. 35. 
protection be painted white and bear the distinctive sign of the 

Red Cross alongside of the national colors, on its upper and 
 

lower surfaces. The aircraft need not be specially designed or 

constructed for sanitary use. Thus, ordinary aircraft, properl

painted and bearing the appropriate insignia would be entitled 
 

12 1 
 

to protection. Conversely, sanitary aircrafz may be converte

by a belligerent at a subsequent time into military aircraft by 

removing the distinctive markings and coloring required by the 
 

122 
 

Convention. In order to prevent sanitary aircraft from col- 

lecting intelligence, the Convention provides that in the absenc

of special and express permission, such aircraft may not fly 
 

over the firing line, over the zone situated in front of the 
 

major medical collecting stations, and in general over any ter- 

ritory under the control of the enemy. 
 

Sanitary aircraft must comply with the enemy sumons to lan

A failure to comply with such a summons results in a forfeiture 

123 
 

of the protection accorded such aircraft and its personnel. 
 

120. FM 27-10, par. 192. 
 

121. Des Gouttes, p. 125. 
 

122. Des Gouttes, p. 125. 

123. Des Gouttes, p. 132. Thus, it may be fired upon by the en

and in case of a forced landing, its personnel may be held 

as prisoners of war. 
 
If sanitary aircraft lands on enemy territory either in complianc

with a smons by the enemy or accidentally, the sanitary personnel, the materiel, the sick and wounded, and the aircraft are 

entitled to the benefits of the Convention. In effect sanitary 

aircraft and its personnel are treated on the same basis as con124 

voys of evacuation. However, as ha3 been stated, the sanitary 

aircraft need not be'specially designed for sanitary use as is th

125

case in convoys of evacuation. The sanitary personnel, the 

personnel of voluntary aid societies, the military personnel 

126 

charged with transportation and provided with a regular order, 

civil personnel obtained by requisition, sanitary materiel and 

aircraft are subject to the rules applicable to convoys.of evacu127 ation. Thus, the sanitary personnel and the personnel of 

voluntary aid societies are entitled to be returned. 

Special provision is made for pilots, mechanics, and wireless operators of sanitary aircraft. As a condition precedent 

to their return, they must give an undertaking to serye only in 

124. Des Gouttes, p. 133. 

125. See p . 145, supra. 

126. Pilots, mechanics, and wireless op 

treated in Art. 18, FM 27-10, par. 

erators are specially 

192, 

127. Des Gouttes, p. 133 
pilot, mechanic or wireless operator violated such an undertaki

he, like the prisoner of war who breaches a parole, would be su

128 
 

ject to punishment. Except for persons who have given their 

pledge, there is no prohibition in the Convention against a pilo

129
 serving alternately in military and sanitary aircraft Of 
 

course, a pilot may not be both a sanitary pilot and a military 

pilot in the same flight. In the latter case, ioe., where his 
 

duties are of a mixed nature, the aircraft is not entitled to th

130
 protection of the Convention. 
 

Where sanitary aircraft has landed either involuntarily or 

in compliance with an enemy summons to lmd, the sick and wounde

are pri,soners of war as is the case when a convoy of evacuation 

a 131 
 

is intercepted. The sanitary materiel and the sanitary air- 

132 
 craft mu& be returned in accordance,with Article 14. 
 

128. See p, 120, supra. 
 

129. Des Gouttes, p. 1360 
 

130. Des Gouttes, pa 137. If such an aircraft carried the Red 

Cross markings it would be an abuse of the Red Cross emble

Des Gouttes, p. 125. 
 

131. Des Gouttes, p, 134. 
 

132. FM 27-10, par, 188. 
 
193-198. ---- The Distinctive Emblem of the Red Cross.. -Out of 

133 
 

respect to Switzerland, the heraldic emblem of Switzerland of 

the red cross on a white ground, fomned by reversing the federal 

134 
 

colors, is adopted as the emblem of thk Red Cross. The Con- 

vention permits the use of the red crescent, or the red lion and 

sun on a white field as a distinctive emblem in countries which 

already use these emblems. Turkey uses a red crescent and Iran 

the red sun. 
 

The Red Cross emblem must be shown on flags, materiel, and 
 

brassards belonging to the sanitary service with the permission 

135
 of competent military authorities, The Red Cross flag pro- 
 

tects hospitals and 'ambulances; the brassard protects individ136 137 

uals. Article 22 specifically states that the Red Cross 
 

flag "may only be displayed over the sanitary formations and es- 

tablishments which the convention provides shall be respected". 

This would exclude civil hospitals or any other buildings or 
 

133. "Heraldic" is used in describing the insignia to indicate 

. that it has no religious association, Bor&weTl, p. 263. 

1340 FM 27-10, par ,' 193.

135. FM 27-10, par. 194. The permission is signified either by 

a written authorization, or by an official stamp on the 
 

sign. Edmonds and Oppenheim, par, 210. 
 

1-36.Spaight, p. 457. 
 

137. FM 27-10, par ., 196. 
flag must -in the case of fixed sanitary establishment be accom- 

panied by the national flag of the belligerent, whereas in the 
 

case of the mobile formations it is optional with the belliger- 

ent to display its national flag. The sanitary formations of 
 

139
 neutral countries must fly with the Red Cross flag, the na- 
 

tional flag of the belligerent to which they are att~ched. Such 

formations may also fly their own national flag during the time 

140 
 

they are rendering service to a belligerent. Sanitary units, 

belligerent or neutral, fly only the Red Cross flag while- in the 

141 
 

power of the enemy. 
 

The personnel entitled to wear the Red Cross brassard are 
 

the following: (1)the personnel charged exclusively with the 
 

removal, transportation, and treatment of the sick and wounded 
 

as well as with the ailministration of sanitary formations and 
 

142 
 

establishments, and army chaplains; (2) the personnel of 
 

138. Spaight, p. 456; see also p, 140, supra, 
 

139. FM 27-10, par. 185, 
 

140, FM 27-10, par. 197. In auch case three flags would be flow

the Red Cross flag, the belligerent7 s flag, and the neutra

flag, Dee Gouttes, p, 171. 
 

141. FM 27-10, par. 196. 
 

12 Par. 1, Art. 9; FM 27-10,par. 182. 
 
volunteer aid societies; 143 (3) the personnel of volunteer aid 

144 

societies of a neutral country. According to some writers, 

the brassards are for the sanitary personnel proper and not for 

those temporarily in the service of the sick and wounded such as 

145 litter-bearers or auxiliary attendants. However, the general

accepted practice has been for those permanently assigned to san

ta~yformations or as chaplains to wear the Red Cross brassard a

' 

all times while in the theater of operations, and for those temporarily servine as litter-bearers or auxiliary attendants upon 

the sick and wounded to wear it only while so serving. .The bras

sard is to be attached to, and not merely slipped over the left 

arm. 	 It is important that the character of sanitary personnel 

146 shall not be put on and off at .pleasure. Both the permanent 

sanitary perkonnel and those employed temporarily as litterbearers, eto .,147 must be furnished with proof of identity enter

148 either in their military handbook or by a special document. 

143. 	 FM 27-10, par, 183. 

\ 

144. 	 FM 27-10, par. 185. 

145. 	 Par. 2, Art. 9; FM 27-10, par, 182; par. 1, Art, 21; FM 27

10, par. 195; Des Gouttes, p. 154; Bordwell, p. 264. 

146. 	 Bordwell, p. 264; Des Gouttes, p. 155, 

147. 	 FM 27-10, par. 182. 

148. 	 FM 27-10? par. 185. 
or of a neutral state, not wearing military uniforms must be fw

nished by competent military authority with a certificate of 

identity containing their photograph and attesting to their sani

149 tary status. Identification documents must be uniform and of 

150 the same type in each army. In no case may the sanitary personnel be deprived of their insignia nor of their own identifi151 cation papers. 

The size of the distinctive emblem is not laid down by the 

Convention except in a general statement that the markings shall 

be plainly visible to the land, air, and sea forces of the enemy 

152 insofar as military exigency allows. The red cross on a whit

ground and the words "Red Cross" or ,'',Geneva Cross" or the other 

emblems mentioned in Article 19153 must not be used either in 

149. 	 FM 27-10, par, 195; see p. 149, supra, footnote 135. Personnel of volunteer aid societies wearing military uniform

are required to have a certiffcate of identity; a photograph 

would not be necessary. Des Gouttes, p, 160. 

150. 	 FM 27-10, par. 1%. 

5 . 	 This is to prevent.a capturing power from evading the duty 

of returning sanitary personnel. Des Gouttes, p. 162, 

2 	 M 27-10, par. 196. 

153. 	 FM 27-10, par. 193 
peace or war, except to designate sanitary formations, establish- 

154

ments, the.personne1 and materiel protected by the Convention. 
 

1.55 The Act incorporating the American National Red Cross provided

among other things, that it shall be unlawful for any person or 
 

corporation, etc., other than the American National Red Cross to 

use the sign or insignia in imitation of the Red Cross for the 
 

purpose of trade or as an advertisement to induce the sale of any 

156
 article. 
 

157
 Voluntary aid societies may, in conformity with their 
 

national legislation, use the distinctive emblem in connection 
 

with their humanitarian activities in time of peace. As an ex-


ception and with the specific authority of one of the national 
 

societies of the Red Cross, use may be made of the emblem of the 

Convention in time of peace to designate stations exclusively 
 

158
 reserved for free treatment of the sick or wounded. 
 

154. 	FM 27-10,par. 198. 
 

155. 	Sec, 4, 33 Stat. 600; 36 U,S.C. 4. 
 

156 	Persons, etc,, using the insignia for purposes of trade 
 

prior to the date of the Act were excepted from its oper,. 

ation. 
 

158 	 FM 27-10,par. 198. 
 

ARMIES OF TRE UNITED STATES IN 
 

THE FIELD 
 

General Orders, 
 

No. 100. 
 

WAR DEPARTMENT, 

Adjutant ~eneral ' s Off i ce, 

Vashington, April 24, 18

The following "Instructions for the Government of Armies of 

the United States in the Field," prepared by Francis Lieber, 
 

LL.D., and revised by a Board of Officers, of which Major General 

E. A. Hitchcock is president, having been approved by the Presi- 

dent of the United States, he commands that they be published for 

the information of all concerned. 
 

BY ORDER OF THE SECRETARY OF WAR: 

E. D. TOWNSEND, 
 

Assistant Adjutant General

INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES 
 

OF THE UNITED STATES IN THE FIELD 
 

Section I 
 

Martial Law--Military Jurisdictfon-.-Military Necessity-- 
 

Retaliation 
 

A place, district, or country occupied by an enemy stands, 
 

in consequence of the occupation, under the Martial Law of the 
 

invading or occupying army, whether any proclamation declaring 
 

Martial Law, or any public warning to the fnhabitants, has been 
 

issued or not. Martial Law is the immediate and direct effect an

consequence of occupation or conquest. 
 

The presence of a hostile army proclaims its Martial Law. 
 

Martial Law does-not cease during the hostile occupation, 
 

except by special proclamation, ordered by the commander in 
 
the war, when the occupation of a place or territo~y continues 
 

beyond the conclusion of peace as one of the conditions of the 
 

same. 
 

Martial Law in a hostile country consists in the suspension

by the occupying military authority, of the criminal and civil 
 

law, and of the domestic administration and government in the 
 

occupied place or territory, and in the substitution of military 

rule and force for the same, as well as in the dictation of 
 

general laws, as far as military necessity requires this sus- 
 

pension, substitution, or dictation. 
 

The commander of the forces may proclaim that the administration of all civil and penal law shall continue either wholly 

or in part, as in times of peace, unless otherwise ordered by 

the military authority . 

4 
 

Martial Law is simply military authority exercised in ac- 
 

cordance with the laws and usages of war. Military oppression 
 

is not Martial Law; it is the abuse of the power which that law 
 

confers. As Martial Law is executed by military force, it is 
 

incumbent upon those who administer it to be strictly guided by 
 

the principles of justice, honor, and humanity--virtues adorning 

a soldier even more than other men, for the very reason that he 
 

possesses the power of his arms against the unarmed. 
 

Martial Law should be less stringent in places and countries 

fully occupied and fairly conquered. Much greater severity may 
 

be exercised in places or regions where actual hostilTties exist, 

or are expected and must be prepared for, Its most complete sway 

is allowed--even in the commander's own country--.when face to fac

with the enemy, because of the absolute necessities of the case, 

and of the paramount duty to defend the country against invasion. 

To save the country is paramount to all other consideration. 

All civil and penal law shall continue to take its usual 

. course in the enemy's places and territories under Martial Law, 

unless interrupted or stopped by order of the occupying military 
power; but all the functions of the hostile government--legis- 
 

lative, executive, or administration--.whether of a general, pro- 

vincial, or local character, cease under Martial Law, or continu

only with the sa.nction, or, if deemed necessary, the participatfo

4 of the occupier or invader. 
 

.Martial Law extends to property, and'to persons, whether the

are subjects of the enemy or aliens to that government. 
 

Consuls, among American and European nations, are not diplo

matic agents. Nevertheless, their offices and persons will be 
 

subjected to Martial Law in cases of urgent necessity only: thei

property and business are not exempted. Any delinquency they com

mit against the established military rule may be punished as in 
 

the case of any other inhabitant, and such punishment fwnfshes 

no reasonable ground for international complaint. 
 

The functions of Ambassadors, Ministers, or other diplomatic 

agents, accredited by neutral powers to the hostile government, 
 

cease, so far as regards the displaced government; but the con- 
 

quering or occupying power usually recognizes them as temporarily 

accredited to itself. 
 

Martial Law affects chiefly the police and collection of 

public revenue and taxes, whether imposed by the expelled govern

ment or by the invader, and refers mainly to the support and 

efficlency of the army, its safety, and the safety of its operat ions . 

The law of war does not only disclafm all cruelty and bad 
 

faith concerning engagements concluded with the enemy during the 

war, but also the breaking of stipulations solemnly contracted by 

the belligerents in tfme of peace, and avowedly intended to remai

in force in case of war between the contracting powers. 
 

It disclaims all extortions and other transactions for in- 
 

dividual gain; all acts of private revenge, or connivance at such 

acts. 
 
eepecially so if committed by officers, 
 

Whenever feasible,. Martial -Law is carri ed out in cases of 

individual offenders by Military Courts; but sentences of death 

shall be executed only with the approval of the chief executive, 

provided the urgency of the case does not require a speedier 

execution, and then only with the approval of the chief cornmander . 

Military jurisdiction is of two kinds: First, that which is 

conferred and defined by statute; second, that which is derived 

from the common law of war. Military offenses under the statute 

law must be tried in the manner therein directed; but military 

offenses which do not come within the statute must be tried and 

punished under the comm.on law of war. The character of the court

which exercise these jurisdictions depends upon the local laws of 

each particular country, 

In the armies of the United States the first is exercised by 

courts-.martial, while cases which do not come within the "Rules 

and Articles of War," or the jurisdiction conferred by statute or 

courts.-martial, are tried by military commissi'ons. 

14 

Milita~y necessity, as understood by modern civilized nation

consists in the necessity of those measures which are indispensab

for secizring the ends of the war,-and whlch are lawful according 

to the modern law and usages of ,war, 

- .Military necessity admits of all dlrect destruction of life 

or limb of armed enemies, and of other persons whose destruction --.­ is incidentally unavoidable in the armed contests of the way.; it --.- -­ allows of the,captwing of every armed enemy, and every enemy of 

importance to the hostile government, or of peculiay danger to 

the captor; it allows of all destruction of property, and obstmction of the ways Eind channels of traffic, travel, or cornmunication, and of all withholding of sustenance -or means of life 

from the enemy; of the appropriation of whatever an enemy's 

country affords necessary for the subsistence and safety of the 
army, and of such deception ds does not involve the breaking of 

good faith either positively pledged, regarding agreements entered into during the war, or supposed by the-modern law of war 

to exist. Men who take up arms against one another In public 

war do not cease on this account to be moral beings, responsible 

to one mother and to God, 

Military necessity does not admit of cruelty--that is, the 

infliction of suffering for the sake of suffering or for revenge, 

nor of maimfng or wounding except in fight, nor of tortme to 

extort confessions. It does not admit of the use of poison in 

any way, nor the wanton devastation of a district. It admits of 

deception, but disclaims acts of perfidy; and, in general, milftary necessity does not include any act of hostility which makes 

the return to peace unnecessarily difficult. 

War is not carried on by arms alone. It is lawful to starve 

the hostile belligerent, armed or unarmedj so that it leads to 

the speedier subjection of the enemy. 

When a commander of a besieged place expels the noncombat- 

ants, in order to lessen the number of those who consume his 

stock of provisions, it is lawful, though an extreme measure, 

to drive them back, so as to hasten on the surrender. 

Commanders, whenever admissible, inform the enemy of their 

intention to bombard a place, so that the noncombatants, and especially the women and children, may be removed before the bombardment commences. But it is no infraction of the common law of 

war to omit thus to inform the enemy, Surprise may be a necessity

Public war is a state of armed hostility betxeen sovereign 

nations or governments. It is a law and.requisite of civilized 

existence that men live in political continuous societies, forming organized units, called states or nations, whose 'constituents 

bear, enjoy, and suffer, advance and retrograde together, in peac

and in war. I 
The citizen or native of a hostile country is thus an enemy

, as one of the constituents of the hostile state or nation, and a

such is subjected to the hardships of the war. 

Nevertheless, as civilization has advanced during the last 

centuries, so has likewise steadily advanced, especially in war 

on land, the distinction between the private individual belongin

to a hostile country and the hostile country itself, with its me

in arms. The principle has been more and more acknowledged that 

the unarmed citizen is to be spared in person, property, and hon

as.much as the exigencies of war will admit. 

Private citizens are no longer murdered, enslaved, or carrie

off to distant parts, and the inoffensive individual is as littl

disturbed in his private relations as the'commander of the hosti

troops can afford to grant in the overmling demands of a vigoro

war. 

The almost universal mle in remote times was, and continue

to be with barbarous armies, that the private individual of the 

hostile country is destined to suffer every privation of liberty 

and protection, and every disruption of family ties. Protection 

was, and still is with uncivilized people, the exception. 

* 

25 , 

In modern regular wars of the Europeans, and their descenda

in other portions of the globe, protection of the inoffensive 

citizen of the hostile country is the rule; privation and disturbance of private relations are the exceptions, 

Commanding generals may cause the magistrates and civil officers of the hostile country to take the oath of temporary allegiance or an oath of fidelity to their own victorious governme

or rulers, and they may expel every one who declines to do so. 

But whether they do so or not, the people and their civil officer

owe str'ict obedience to them as long as they hold sway over the 

district or country, at the peril of their lives. 
The law of war can no more wholly dispense with retaliation 

than can the law of nations, of which it is a branch. Yet civi- 

lized nations ackflowledge retaliation as the sternest feature of 

war. A reckless enemy often leaves to his opponent no other 

means of securing himself against the repetition of barbarous 

outrage. 

Retaliation will, therefore, never be resorted to as a measure of mere revenge, but only as a means of protective retributio

and moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted ts after careful inquiry into the 

real occurrence, and the character of the misdeeds that may deman

retribution. 

Unjust or inconsiderate retaliation removes the belligerent? 

farther and farther from the mitigating rules of regular war, and 

by rapid steps leads them nearer to the internecine wars of 

savages. 

Modern times are distinguished from earlier ages by the 

existence, at one and the same time, of many nations and great 

governments related to one another in close intercourse. 

Peace is their normal condition; war is the exception. The 

ultimate object of all modern war is a renewed state of peace. 

The more vigorously wars are pursued, the better it is for 

humanity. Sharp wars are brief. 

Ever since the formation and coexistence of modern nations, 

and ever since wars have become great national wars, war has come 

to be acknowledged not to be its own end, but the means to obtain 

great ends of state, or to consist in defense against wrong; and 

no conventional restriction of the modes adopted to injure the 

enemy is any longer admitted; but the law of war imposes many 

limitations and restrictions on principles of Justice, faith, and 

honor. 
Public and Private Property of the Enemy-.-Protection of Persons, 

* 	 and Especially of Women; of Religion, the Arts and Sciences-- 

Punishment of Crimes Against the Inhabitants of Hostile 

Countries 

A victorious army appro-priates all public money, seizes all 

public movable property until further direction by its government

and sequesters for its own benefit or of that of its government 

all the revenues of real property belonging to the hostile govern

ment or nation. The title to such real property remains in abeyance dwing military occupation, and until the conquest is made 

complete. 

A victorious army, by the martial power inherent in the 

same, may suspend, change, or abolish, as far as the martial 

power extends, the relations which arise from the services due, 

according to the existing laws of the invaded country, from one 

citizen, subject, or native of the same to another. 

The commander of. the army must leave it to the ultimate 

treaty of peace to settle the permanency of this change. 

It is no longer considered lawful--on the contrary, it is 

held to be a serious breach of the law of war--to force the subjects of the enemy into the service of the victorious government, except the latter should proclaim, after a fair and complete 

conquest of the hostile country or district, that it is resolved 

to keep the country, district, or place permanently as its own 

and make it a portion of its own country. 

As a general rule, the property. belonging to churches, to 

hospitals, or other establishments of an exclusively charitable 

character, to establishments of education, or foundations for 

the promotion of knowledge, whether public schools, universities, 

academies of learning or observatories, museums of the fine arts, 

or of a scientific character--such property is not to be considered public property in the sense of paragraph 31; but it may 

be taxed or used when the public service may require it. 
Classical.works of art, libraries, scientific collections, 

or precious instruments, such as astronomical telescopes, as wel

as hospitals, must be secured against all avoidable injury, even 

when they are contained in fortified places whilst besieged or 
 

bombarded. 
 

If such works of art, libraries, collections, or instrument

belonging to a hostile nation or government, can be removed with

out injury, the ruler of the conquering state or nation may orde

them to be seized and removed for the benefit of the said nation

The ultimate ownership fs to be settled by the ensuing treaty of 

peace. 
 

In no case shall they be sold or given away, if captured by 

the armies of the United States, nor shall they ever be privatel

appropriated, or wantonly destroyed or injured. 
 

The United States acknowledge and protect, in hostile coun- 

tries occupied by them, religion and morality; strictly private 

property; the persons of the inhabitants, especially those of 
 

women; and the sacredness of domestic relations. Offenses to 
 

the contrary shall be rigorously punished. 
 

This rule does not interfere with the right of the victorio

invader to tax the people or their property, to levy forced loan

to billet soldiers, or to appropriate property, especially house

lands, boats or ships, and churches, for temporary and military 

uses. 
 

~rivate'~ro~ert~,
 unless forfeited by crimes or by offenses 

of the owner, can be seized only by way of military necessity, f

the support or other benefit of the army or of the United States

If the owner has not fled, the commanding officer will caus

receipts be given, which may serve the spoliated owner to obtain 

indemnity. 

The salaries of civil officers of the hostile government w"n

remain in the invaded territory, ahd continue the work of their 
 
y gpp

lic revenue of the invaded territory, until the military government has reason wholly OT partially to discontinue it. Salaries 

or incomes connected with purely honorary titles are always stop

,There exists no law or body of authoritative kles of actio

.between hostile amies, except that branch of the law of nature 

and nations which is called the law and usagks of war on land, 

All municipal law of the pound on which the amies stand, 

or of the countries to which they belong, is silent and of no 

effect between'amnies in the field. 

Slavery, complicating and confounding the ideas of property 

(that is of a thing), and of personality (that is of humanity), 

exists according to municipal OT local law only. The law of 

nature and nations has never acknowledged it, The digest of the 

Roman law enacts the early dictum of the pagan jurist, that "so 

far as the law of nature is conce~ned, all men are equal." Fugitives escaping from a country in which they were slaves, villa

or serfs, into another country, have, for centuries past, been 

held free and acknowledged free by judicial decisions of Europea

countries, even though the municipal law of the country in which 

the slave had taken refuge acknowledged slavery within its own 

dominions. 

Therefore, in a war between the United States and a bellfge

ent which admits of slavery, if a person held in bondage by that 

belligerent be captured by or come as a fugitive under the protection of the military forces of the United States, such person 

is immediately entitled to the rights and privileges of a freema

To return such perpon into slavery would amount to enslaving a 

free person, and nefther the United States nor any officer under 

their authority can enslave any human being. Moreover, a person 

so made free by the law of war is under the shield of the law of 

nations, and the former owner or State can have, by the law of 

postliminy, no belligerent lien or ekim of servfce. 
All wanton violence committed against persons in the invaded 

country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after 

taking a place by main force, all rape, wounding, maiming, or 

killing of such inhabitants, are prohibited under the penalty of 

death, or such other severe punishment as may seem adequate for 

the gravity of the offense. 

A soldier, officer or private, in the act of committing such 

violence, and disobeying a superior ordering him to abstain from 

it, may be lawfully killed on the spot by such superior. 

All captures and booty belong, according to the modern law 

. of war, primarily to the government of the captor. 

Prize money, whether on sea or land, can now only be claimed 

under local law. 

Neither officers nor soldiers are allowed to make use of 

their position or power in the hostile country for private gain, 

not even for commercial transactions otherwise legitimate. Offenses to the contrary committed by commissioned officers will be 

punished with cashiering or such other punishment as the nature 

of the offense may require; if by soldiers, they shall be punishe

according to the nature of the offense. 

Crimes punishable by all penal codes, such as arson, murder, 

maiming, assaults, highway robbery, theft, burglary, fraud, 

forgery, and rape, if committed by an American soldier fn a 

hostile country against its inhabitants, are not only punishable 

as at home, but in all cases in which death fs not inflicted, 

the severer punishment shall be preferred. 
Battlefield 
 

Deserters from the American Army, having entered the service ' of the enemy, suffer death if they fall again into the hands of 

the United States, whether by capture, or being delivered up to 

the American Army; and if a deserter from the enemy, having taken 

service in the Army of the United States is captured by the enemy

and punished by them with death or otherwise, it is not a breach 

against the law and usages of war requiring redress or retaliatio

49 
 / 

A prisoner of war is a public enemy armed or attached to the 

hostile army for active aid, who has fallen into the hands of the 

captor, either fightfng or wounded, on the field or in the hos: 

pital, by individual surrender, or by capitulationo 

All soldiers, of whatever species of arms; all men who belon

to the rising en masse of the hostile country; all those who are 

attached to the army for its efficiency and promote directly the 

object of the war, except such as are hereinafter provided for; 

all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown away their arms and ask for 

quarter, are prisoners of war, and as such exposed to the fnconveniences as well as entitled to the privileges of a prisoner of 

war. 
 

Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if .captured, may be made prisoners of war, and be 

detained as such. 

The monarch and members of the rgigning hostile family, male 

or female, the chief, and chief officers of the hostile government, its diplomatic agents, and all persons who are of particula

and singular use and benefit to the hostile army or its govern-, 

ment, are, if captured, on belligerent ground, and,if unprovided 

with a safe conduct granted by the captor's government, prisoners 

of war. 
- - 

If the people of that portion of an invaded country which i

not yet occupied by the enemy, or of the whole country, at the 

approach of a hostile army, rise, under a duly authorized levy, 

en msse to resist the invader, they are now treated as public 

enemies, and, if captured, are prisoners of war, 

No belligerent has the right to declare that he will treat 

every captured man in arms of a levy en masse as a brigand or 

bandit . 

If, however, the people of a country, or any portion of the 

same, already occupied by an army, rise against it, they are 

violators of the laws of war, and are not entitled to their protection. 

The enemy's chaplains, officers of the medical staff, 

apothecaries, hospital nurses and servants, if they fall into the 

hands of the American Army, are not prisoners of war, unless the 

commander has reasons to retain them. In this latter case, or i

at their own desire, they are allowed to remain with their captu

companions, they are treated as prisoners of war, and may be exchanged if the comander sees fit, 

A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents during the 

war, or in consequence of a war. Hostages are rare in the presen

age. 

If ahostage is accepted, he is treated like a prisoner of 

war, according to rank and condition, as circumstances may aMt

A grisoner of war is subject to no punishment for being a 

public enemy, nor is any revenge wreaked upon hfm by the intentio

al infliction of any suffering, or disgrace, by cruel fmprisonment, want of food, by mutilation, death, or any other barbarity. 
-- 

So soon as a man is armed by a sovereign government and take

the soldier's oath of fidelity, he is a belligerent; his killing

wounding, or other warlike acts are not individual crimes or 

offenses. No belligerent has a right to declare that enemies of 

a certain class, color, or condition, when properly organized as 

soldiers, will not be treated by him as public enemies. 

58 

The law of nations knows of no distinction of color, and if 

an enemy of the United States should enslave and sell any capture

persons of their army, it would be a case for the severest retali

ation, if not redressed upon complaint. 

The United States cannot retaliate by enslavement; therefore 

death must be the retaliation for this crime against the law of 

nations. 

A prisoner of war remains answerable for his crimes commftte

against the captor's army or people, committed before he was cap- 

tured, and for which he has not been punished by his own authorities. 

All prisoners of-war are liable to the infliction of retaliatory measures. 

It is against the usage of modern war to resolve, in hatred 

and revenge, to give no quarter. No body of troops has the right 

to declare that it will not give, and therefore will not expect, 

quarter; but a commander is permitted to direct 11-48 troops to giv

no quarter, in great straits, when his owr.salvatfon.makes it -impossible to cumber himself with prisoners, 

Troops that give no quarter have no right to kill enemies 

already disabled on the ground, or prisoners captured by other 

troops. 

All troops of the enemy known or discovered to give no 
 

quarter in general, or to any portion of the army, receive none. 
 
Troops who fight in the uniform of their enemies, without an

plaiq, striking, and uniform mark of distinction of their om, c

expect no quarter. 
 

If American troops capture a train containing uniforms of 

the enemy, and the comander considers it advisable to distribut

. them fo~" use among his men, some striking mark or sign must be 

adopted to distinguish the American soldier from the enemy. 

The use of the enemy's national standard, flag, or other 
 

emblem of nationality, for the purpose of deceiving the enemy in 

battle, is an act of perfidy by which they lose all claim to the 

protection of the laws of war. 
 

Quarter having been given to an enemy by American troops, 

under a mishpprehension of his true character, he may, nevertheless, be ordered to suffer death if, within three days after the 

battle, it be discovered that he belongs to a corps which gives n

quarter. 

The law of nations allows every sovereign government to make 

war upon another sovereign state, and, therefore, admits of no 
 

rules or laws different .from those of regular warfare, yegarding 

the treatment of prisoners of war, although they may belong to 
 

the army of a government which the captor may consfder as a wanto

and unjust assailant, 
 

Modern wars are not internecine wars, in whfch the killing o

the enemy is the object, The destruction of the enemy in modern 

war, and, indeed, modern war itself, are means to obtain that 
 

object of the belligerent which lies beyond t~e war. 
 , I 

Unnecessary or revengeful destruction of life is not law- 
 

ful, 
 
Outposts, sentinels, or pickets are not to be fired upon, 
 

except to &rive them in, or when positive order, special or 
 

general, has been issued to that effect. rdi 
 

70 Y 

, .The use of poison in any manner, be it to poison wells, 
 

or food, or arms, is wholly excluded from modern warfare. He 
 

that uses it puts himself out of the pale of the law and usages 
 

of war. 
 

Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encowages soldiers to do so, shall suffer death, if 

duly convicted, whether he belongs to the Amy of the United 

States, or is an enemy captured after having committed his misdeed. 

72 
 - Money and other valuables on the person of a prisoner, such 

as watches or jewelry, as well as extra clothing, ape regarded b

the American Armyas the private property of the prisoner, and 

the appropriation of such valuables or money is considered dishonorable, and is prohibited. 

Nevertheless, if large sums are found upon the persons.of 

prisoners, or in their possession, they shall be taken from them

and the surplus, after providing for their own support, appropriated for the use of the army, under the direction of the commander, unless otherwise ordered by the government, Nor c.an 

prisoners claim, as private property, large sums found and captured in their train, although they have been placed in the private luggage of the prisoners. 

All officers, when captured, must surrender their side arms 

to the captor. They: may be restored to the prisoner in marked 

cases, by the commander, to signalize admiration of his distinguished bravery or approbation of his humane treatment of prisoners before his capture. The captured officer to whom they 

may be restored cannot wear them during captivity. 
A prisoner of war, being a public enemy, is the prisoner o

the government, and not of the captor, No ransom can be paid by 

a prisoner of wm to his individual captor or to any officer fn 

command. The government alone releases captives, according to 

rules prescribed by itself. 

Prisoners bf war are subject to conffnement of imprisonmen

such as may be deemed necessary on account of safety, but they 

to be subjected to no other intent9osial~$uffering, or indignity

The confinement and mode of treating a prisoner may be varied d

ing his captivity according to the demands of safety. 
 

Prisoners,of war shall be fed upon plain and wholesome foo

whenever practicable, and treated with humanity. 
 

They may be required to work for the benefit of the captor

government, according to their rank and condition. 
 

A prisoner of war who escapes may be shot or otherwise kil

in his flight; but neither death nor any other punishment shall 

inflicted upon him simply for- his attempt to escape, which the 

of war does not consider a crime. Stricter means of security sh

be used after an unsuccessful attempt to escape. 
 

If, however, a conspiracy is discovered, the purpose of whi

is a united or general escape, the conspirators may be rfgorous

punished, even with death; and capital punishment may also be in

flicted upon prisoners of war discovered to h'ave plotted rebell

against the authorities of the captors, whether in union with 
 

fellow prisoners or other persons. 
 

If prisoners of war, having given no pledge nor made any 
 

promise on their honor, forcibly or otherwise escape, and are 
 

captured again in battle 'after having rejoined their own am, 

they shall not be punished for thefr escape, but shall be treate

as simple prisoners of war, although they will be subjected to 
 

stricter confinement. 
 
'Every captured wounded enemy shall be medically treated, 
 

according to the ability of the medical staff. 
 

Honorable men, when captured, will abstain from giving to 
 

the enemy information concerning their own army, and the modern 
 

law of war permits no longer the use of any violence against 
 

prisoners in order to extort the desired information or to punish 

them for having given false information. 
 

SECTION IV 
 

Partisans--Armed aemies not belonging to the Hostile 


Army--Scouts- -Armed Prowlers --War -rebels 


Partisans are soldiers armed and wearing the uniform of thei

army, but belonging to a corps which acts detached from the main 

body for the purpose of making inroads into the territory occupie

by the enemy, If captured, they are entitled to all the privileg

of the prisoner of war. 
 .­

82 

Men, or squads of men, who commit hostilities, whether by 
 

fighting, or inroads for destruction or plunder, or by raids of 
 

any kind, without commission, without being part and portion of 
 

the organized hostile army, and without shxring continuously in 
 

the war, but do so with intermitting returns to thefr homes and 
 

avocations, or with the occasional assumption of the semblance of 

peaceful pursuits, divesting themselves of the character OT ap-


pearance of soldiers--such men, or squads of men, are not public 

enemies, and, therefore, if captured, Ere not entitled to the 
 

privileges of prisoners of war, but shall be treated summarily as 

highway robbers or pirates. 
 

Scouts, or single soldiers, if disguised in the dress of 
 

the country or in the uniform of the army hostile to their own, 
 

employed in obtaining information, if found within or lurking 
 

apout the lines of the captor, are treated as spies, and suffer 
 

death. 
 
Armed prowlers, by whatever names they may be called, or 
 

persons of the enemy's territory, who steal within the line4 of 

the hostile army for the purpose of robbing, killing, or of de- 

stroying bridges, roads, or canals, or of robbing or destroying 

the mail, or of cutting the telegraph wires, are not entitled t

the privileges of the prisoner of war. 
 

War-rebels are persons within an occupied territory who ri

in arms against the occupying or conquering army, or against th

authorities established by the same. If captured, they may suf

death, whether they rise singly, in small or large bands, and 
 

whether called upon to do so by their own, but expelled, govern

ment or not. They are not prisoners of war; nor are they if di

covered and secured before their conspiracy has matured to an a

rising or armed violence. 
 

SECTION V 
 

Safe-conduct--Spies--War-traitors--Captured
 Messengers 
 

All intercourse between the territories occupied by,bellig

ent armies, whether by traffic, by letter, by travel, or in any 

other way, ceases. This is the general rule, to be observed wf

out special proclamation. 
 

Exceptions to this rule, whether by safe-conduct, or permi

sion'to trade on a small or large scale, or by exchanging mails

or,by travel.from one territory into the other, can take place 
 

only according to agreement approved by the government, or by h

est military authority. 
 

Contraventions of this rule are highly punishable. 
 

Ambassadors, and all other diplomatic agents of neutral 
 

powers, accredited to the enemy, may receive safe-conducts throu

the territories occupied by the belligerents, unless there are 
 

military reasons to the contxary, and unless they my reach the 

place of their destination conveniently by another route. It 
 
A spy is a person who secretly, in disguise or under false 

pretense, seeks information with the intention of communicating 

it to the enemy. 
 

The spy is punishable with death by hanging by the neck, 
 

whether' or not he succeed in obtaining the Tnformation or in con

veying it to the enemy. 
 

IT a citizen of the united States obtains information in a 

legitimate manner, and betrays it to the enemy, be he a military 

or civil officer, or a private citizen, he shall suffer death. 
 

A traitor under the law of war, or a war-traitor, is a pers

in a place or district under martial law who, unauthorized by th

military commander, gives information of any kind to the enemy, 

holds intercourse with him. 
 

The war-traitor is always severely punished. If his offens

consists in betraying to the enemy anything concerning the con- 

dition, safety, operations, or plans of the troops holding or 
 

occupying the place or district, his punishment is death. 
 

If the citizen or subject of a country or place invaded or 

conquered gives information to his own government, from which he 

is separated by the hostile army, or to the army of his governine

he is a war-traitor, and death is the penalty of his offense. 
 

All armies in the field stand in need of guides, and impres

them if they cannot obtain them otherwise. 
 

No person having.been forced,by the enemy to serve as guide 

is punishable for having done so. 
 
If a citizen of a hostile and invaded district voluntarily 

serves as a guide to the enemy, or offers to do so, he is deemed 

a war-trai.tor, and shall suffer death. 
 

A citizen serving voluntarily as a guide against his oh 

country commits treason, and will be dealt with according to the 

law of his country. 
 

Guides, when it is clearly proved that they have misled- in- 

tentionally, may be put to death. 
 

All unauthorized or secret communication with the enemy is 

considered treasonable by the law of war. 
 

Foreign residents in an invaded or occupied territory, or 
 

foreign visitors in the same, can claim no immunity from this 
 

law. They may cohunicate with foreign parts; or with the inhab

itants of the hostile country, so far as the military authority 

permits, but no further. Instant expulsion from the occupied 
 

territory would be the very least punishment for the infraction 

of this rule. 
 

A messenger carrying written dispatches or verbal messages 

from one portion of the'army, or from a besieged place, to an- 
 

other portion of the same army, or its government, if armed, and 

in the uniform of his army, and if captured, while doing so, in 

the territory occupied by the enemy, is treated by the captor as 

a prisoner of war. If not in uniform, nor a soldier, the circum

stances connected with his capture must determine the dispositio

that shall be made of hfm. 
 

A messenger or agent who *attempts to steal through the terr

tory occupied by the enemy, to further, in any manner, the inter

ests of the enemy, if captured, is not entitled to the privilege

of the prisoner of war, and may be dealt with according to the 
 

circumstances of the case. 
 
While deception in war is admitted as a just and necessary 

means of hostility, and is consistent with honorable warfare, the 

common law of war allows even capital punishment for'clandestine 

or treacherous attempts to injure an enemy, because they are so 

dangerous, and it is so difficult to guard against them. 

The law of war, like the criminal law regarding other offens

makes no difference on account of the difference of sexes, concerning the spy, the war-traitor, or the war-rebel. 

103 

Spies, war-traitors, and war-rebels are not exchanged according to the common law of war. The exchange of such persons 

would require a special cartel, authorized b,y the government, .or, 

at a great distance from it, by the chief commander of the army 

in the field. 

A successful epy or war-traitor, safely returned to his own 

armyJ and afterwards captured as an enemy-, is not subject to puni

ment for his acts as a spy or war-traitor, but he may be held in 

closer custody as a person individually dangerous. 

SECTION VI 

Exchange of Prisoners--Flags of Truce--Abuse of the Flag 

of Truke--Flags of Protection 

Exchanges of prisoners take place--number for number--rank 

for rank--wounded for wounded-.-with added condition for ad,ded con

dition--such, for instance, as not to serve for a certain period. 

In exchanging prisoners of war, such numbers of persons of in

ferior rank may be substituted as an equivalent for one of superi

rank as may be agreed upon by cartel, whfch requires the sanction 

of the government, or of the commander of the anny in the field. 
I A prisoner of war is in honor bound truly to state to the 

captor his rank; and he is not to assume a lower rank than belong

to him, in order to cause a more advantageous exchange, nor a 

higher rank, for the purpose of obtaining better treatment. 

Offenses to the contrary have been justly punished by the 
 

commanders of released prisoners, and may be good cause for re- 
 

fusing to release such prisoners. 
 

The surplus number of prisoners of war remaining after an 
 

exchange has taken place is sometimes released either for the 
 

payment of a stipulated sum of money, or; in urgent cases, of 
 

provision, clothing, or other necessaries. 
 

Such arrangement, however, requires the sanction of the high

est authority. 

The exchange of prisoners of war is an act of convenience to 

both belligerents. If no general cartel has been concluded, it 
 

cannot be demanded by either of them. No belligerent is obliged 

to exchange prisoners of war. 
 

A cartel is voidable as soon as either party has violated it

No exchange of prisoners shall be made except after complete 

capture, and after an accurate account of them, and a list of the 

captured officers, has been taken. 
 

The bearer of s flag of truce cannot insist upon being ad- 
 

mitted. He must always be admitted with great caution. Unneces-


sary frequency is carefully to be avoided. 
 

If the bearer of a flag of truce offer himself during an en-

gagement, he can be admitted as a very rare exception only. It i

no breach of good faith to retain such flag of truce, if admitted 

during the engagement. Firing is not required to cease on the 
 

appearance of a flag of truce in battle. 
 
If the bearer of a flag of truce, presenting himself during 

an engagement, is killed or wohded., it furnishes no ground of 

complaint whatever. 

If it be discovered, and fairly proved, that a flag of truce 

has been abusedfor surreptitiously obtaining military knowledge, 

the bearer of the flag thus abusing his sacred character is deeme

a SPY. 

So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially hei

nous offense, great caution is requisite, on the other hand, in 

convicting the bearer of a flag of truce as a spy. 

It is customary to designate by certain flags (usually 

yellow) the hospitals in places which are shelled, so that the 

besieging enemy may avoid firing on them. The same has been done 

in battles, when hospitals are situated within the field of the 

engagement. 

Honorable belligerents often request that the hospital~~wi

in the territory of the enemy may be designated, so that they may 

be spared. 

An honorable belligerent allows himself to be guided by flag

or signals or protection as much as the contingencies and the 

necessities of the fight will permit. 

It is justly considered an act of bad faith, of infamy or 

fiendishness, to deceive the enemy by flags of protection. Such 

act of bad faith may be good cause for refusing to respect such 

flags. 

The besieging belligerent has sometimes requested the besiegb 

ed to designate the buildings containing collections of works of 

art, scientific museums, astronomical observatories, or precious 
libraries, so that their destruction may be avoided as much as 

possible. 

SECTION VII 

The Parole 

Prisoners of war may be released from captivity by exchange, 

and, under.certain circumstances, also by parole. 

The term "Parole" designates the pledge of individual good 

faith and honor to do, or to omit doing, certain acts after he 

who gives his parole shall have been dismissed, wholly or partially, from the power of the captor. 

The pledge of the parole is always an individual, but not a 

private act. 

The parole applies chiefly to prisoners of war whom the capt

allows to return to their country, or to live in greater freedom 

within the captor's country or territory, on conditions stated in 

the parole. 

Release of prisoners of war by exchange is the general rule; 

release by parole is the exception. 

Breaking the parole is punished with death when the person 

breaking the parole is captured again. 

Accurate lists, therefore, of the paroled persons must be 

kept by the belligerents. 
When paroles are given and received there must be an exchang

of two written docwents, in which the name and rank of the parol

individuqls are accurately and truthfully stated. 

Commissioned officers only are allowed to give their parole, 

and they can give it only with the permission of their superior, 

as 'long as a superior in rank is within reach. 

No noncommissioned officer or private can give his parole 

except through an officer. Individual paroles not given through 

an officer are not only void, but subject the individuals giving 

them to the punishment of death as deserters. The only admissible exception is where individuals, properly separated from 

their commands, have suffered long confinement without the possibility of being paroled through an officer. 

No paroling on the battlefield; no paroling of entire bodies 

of troops after a battle; and no dismissal of large numbers of 

pr'isoners, with a general declaration that they are paroled, is 

permitted, or of any value. 

?n capitulations for the surrender of strong places or 

fortified camps the commanding officer, in c.ases of urgent necessity, may agree that the troops under his command shall not 

fight again during the war, unless exchanged, 

The usual pledge given in' the parole is not to serve during 

the existing war, unless exchanged. 

This pledge refers only to the active service in the field, 

against the paroling belligerent or his allies actively engaged 

in the same war. These cases of breaking %he parole are patent 

acts, and can be visited with the punishment of death; but the 

pledge does not refer to internal service, such as recruiting or 

drilling the recruits, fortifying places not besieged, quelling 

civil commotions, fighting against belligerents unconnected with 
the paroling belligerents, or to civil or diplomatic service for 

which the paroled officer may be employed. 

. If the government does not approve the parole, the paroled 
 

officer must return into captivity, and should the enemy refuse 
 

to receive him, he is free of his parole. 
 

A belligerent government may declare, by a general'order, 

whether it will allow paroling, and on what conditions it will 

allow it. Such order is communicated to the enemy. 

No prisoner of war can be forced by the hostile government 

to parole himself, and no government is obliged to parole prison

of war, or to parole all captured officers, if it paroles any. A

the pledging of the parole is an individual act,so is paroling, 

on the other hand, an act of choice on the part of the belligeren

The commander of an occupying army niay require of the civil 

officers of the enemy, and of its citizeng, any pledge he may con

sider necessary for the safety or security of his army, and upon 

their failure to give it he may arrest, confine, or detain them. 

SECTION VIII 
 

An armistice is the cessation of active hostilities for a 

period agreed between belligerents. It must be agreed upon in 

writing, and duly ratified by the highest authorities of the contending parties. 

If an armistice be declared, without conditions, it extends 

no further than to require a total cessation of hostilitfes along 

the front of both belligerents. 
p, gy y p

either party vi,>lates any express condition, the armistice may be 

declared null and hid by the other. 
 

An armistice may be general, and valid for all points and 
 

lines of the belligerents; or special., that is, referring to 
 

certain troops or certain localities onlx. 
 

* 

An armistice my be concluded for a definite time; or for an 

indefinite time, during which either belligerent may resume hostil

ities on giving the notice agreed upon to the other. 
 

The motives which induce the one or the other belligerent to 

conclude an armistice, whether it be expected to be preliminary to 

a treaty of peace, or to prepare during the armistice for a more 
 

vigorous prosecution of the war, does in no way affect the charact

of the armistice itself. 
 

An armistice is binding upon the belligerents from the day of 

the agreed commencement; but the officers of the armies are respon

sible from the day only when they receive official information of 

its existence. 
 

140 
 

Commanding officers have the right to conclude armistices 
 

binding on the district over which their command extends, but 
 

such armistice is subject to the ratification of the superior 
 

authority, and ceases so soon as it is made known to the enemy 
 

that the armistice is not ratified, even if a certain time for the 

elapsing between giving notice of cessation and the resumption of 

hos-Lilitigs should have been stipulated for. 
 

It is incumbent upon the contracting parties of an armistice 

to stipulate what intercourse of persons or traffic between the 
 

inhabitants of the territories occupied by the hostile armies shal

be allowed, if any. 
 

If nothing is stipulated the intercourse remains suspended, 
 

as during actual hostilities. 
 
An armistice is not a partial or a temporary peace; it is 
 

only the suspension of military operations to the extent agreed 
 

upon by the parties. 
 

When an armistice is concluded between a fortified place and 

the army besieging it, it is agreed by all the authorities on thi

subject that the besieger must cease all extension, perfection, o

advance of his attacking works as much so as from attacks by main 

force. 
 

But as there is a difference of opinion among martial jurist

whether the besieged have the right to repair breaches or to erec

new works of the defense within the place during an armistice, th

point should be determined by express agreement between the parti

So soon as a capitulation is signed, the capitulator has no 

right to demolish, destroy, or inJure the works, arms, stores, or 

ammunition, in his possession, during the time which elapses be- 

.tween the signing and the exe2iikion of the capitulation, unless 
 

otherwise stipulated in the same. 
 

Idhen an armistice is clearly broken by one of the parties, t

other party is released from all obligation to observe it. 
 

Prisoners taken in the act of breaking an armistice must be 

treated as prisoners of war, the officer alone being responsible 

who gives the order for such a violation of an armistice. The 
 

highest authority of the belligerent aggrieved may demand redress 

for the infraction of an armistice. 
 

Belligerents sometimes conclude an armistice while their ple

potkntiaries are met to discuss the conditions of a treaty of pea

but plenipotentiaries may meet without a preliminary armistice; i

the latter case, the war is carried on without any abatement. 
 
Assassination 
 

The law of war does not allow proclaiming either an individu

belonging to the hostile army, or a citizen, OF a subaect of the 

hostile government, an outlaw, who may be slain without trial by 
 

-any captor, any more than the modem law of peace allows such int

tional outlawry; on the contrary, it abhors such outrage. The 
 

sternest retaliation should follow the murder committed in con- 
 

sequence of such proclamsltion, made by whatever authority. Civil

ized nations look with horror upon offers of rewards for the 
 

assassination of enemies as relapses into barbariam. 
 

SECTION X 
 

Insurrection is the rising of people in arms against their 
 

government, or a portion of it, or against one or more of its law

or against an ofyicer or officers of the government. It may be 
 

confined to mere armed resistance, or it may have greater ends in 

view. 
 

150 

Civil war is war between two or more poytions of a country 
 

or state, each contending for the mastery of the whole, and each 
 

claiming to be the legitimate government. The term is also some- 

times applied to war of rebellion, when the rebellious provinces 
 

or portion of the state are contiguous to those containing the sea

of government. 
 

The term "rebellion" is applied to an inswrection of large 
 

extent, and is usually a war between the legitimate government of 

a country and portions of provinces of the same who seek to throw 

off their allegiance to it and set up a government of their own. 
 
When humanity induces the adoption of the rules of regular 

war toward rebels, whether the adoption is partial or entire, it 

does in no way whatever imply a partial or complete acknowledgem

of their government, if they have set up one, or of them, as an 

independent and sovereign power. Neutrals have no right to make 

the adoption of the rules of war by the assailed government toward rebels the ground of their own acknowledgement of the revolt

people as an independent power. 

Treating captured rebels as prisoners of war, exchanging the

concluding of cartels, capitulations, or other warlike agreements 

with them; addressing officers of a rebel army by the rank they 

may have in the same; accepting flags of truce; or, on the other 

hand, proclaiming martial law in their territory, or levying wartaxes or forced loans, or doing any other act sanctioned or deman

ed by the law and usages of public war between sovereign belliger

neither proves nor establishes an acknowledgment of the rebelliou

people, or of the government which they may have erected, as a 

public or sovereign power. Nor does the adoption of the rules of 

war toward rebels imply an engagement with them extending beyond 

the limits of these rules. It is victory in the field that ends 

the strife and settles the future relations between the contendin

parties. 

154 

Treating, in the field, the rebellious enemy according to th

law and usages of way ha? never prevented the legitimate governme

from trying the leaders of the rebellion or chief rebels for high 

treason, and from t~eating them.accordingly, unless they are included in a general amnesty. 

All enemies in regular war are divided into two general clas

es-.-that is to say, into combatants and noncombatants, or unarmed 

citizens of the hostile government. 

The military commander of the legitimate government, in a 

war of rebellion, distinguishes between the loyal cftizen in the

revolted portion of the country and the disloyal citizen, The df

loyal citizens may further be classified into those citfzens know

to sympathize with the rebellion without positively aiding it, an

those who, without taking up arms, give positive aid and comfort 

the rebellious enemy without being bodily forced thereto. 
Common justice and 'plain expediency require that the militar

comander protect the manifestly loyal citizens, in revolted terr

tories, against the hardships of the war as much as the common mi

fortune of all war admits. 

The commander will throw the burden of the war, as much as 

lies within his power, on the disloyal citizens, of the revolted 

portion or province, subjecting them to a stricter police than th

noncombatant enemies have to suffer in regular war; and if he deem

it appropriate, or if his government demands of them that every 

citizen shall, by an oath of allegiance, or by some other manifes

act, declare his fidelity to the legitimate government, he may ex

transfer, imprison, or fine the revolted citizens who refuse to 

pledge themselves anew as citizens obedient to the law and loyal 

the government. 

Whether it is expedient to do so, and whether reliance can b

placed upon such oaths, the comnder or his government has the 

right to decide. 

Armed or unarmed resistance by citizens of the United States 

against the lawful movements of their troops is levying war again

the United States, and is therefore treason.