41. Colored troops.-The law of nations knows no distinction of color, so that the enrolling of individuals belonging to civilized colored races and the employment of whole regiments of colored troops is duly authorized. The employment of savage tribes or barbarous races should not be resorted to in wars between civilized nations.1

1 G. O. 100, 1863, art. 57. "So soon as a man is armed by a sovereign government and takes 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."

42. Armed forces consist of combatants and noneombatants.. H. R., Art. III. The armed forces of the belligerent parties may consist of combatants and noncombatants. In case of capture by the enemy, both have a right to be treated as prisoners of war.

CHAPTER IV.

PRISONERS OF WAR.

43. Definition.—A prisoner of war is an individual whom the enemy, upon capture, temporarily deprives of his personal liberty on account of his participation directly or indirectly in the hostilities, and whom the laws of war prescribe shall be treated with certain considerations.1

1 Vide G. O. 100, 1863, art. 49.

44. Treatment.-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, regarding the treatment of prisoners of war, although they may belong to the army of a Government which the captor may consider as a wanton and unjust assailant.1

1 G. O. 100, 1863, art. 67.

45. Who can claim the status of prisoners of war.-H. R., Art. III. The armed forces of the belligerent parties may consist of combatants and noncombatants. In the case of capture by the enemy, both have a right to be treated as prisoners of war.1

1

1 As to persons enjoying special exemptions when captured or upon falling into the hands of the enemy, vide infra, Geneva Convention, arts, 6 to 13, infra, secs. 118 et seq.; as to persons not directly attached to the army, see infra, secs. 46 et seq.; as to persons who can not claim the rights of prisoners of war when captured, see sec. 82 and secs. 367 et seq.

46. Individuals who follow an army without belonging to it.— H. R., Art. XIII. Individuals who follow an army without directly belonging to it, such as newspaper correspondents, and reporters, sutlers, and contractors, who fall into the enemy's hands and whom the latter thinks expedient to detain, are entitled to be treated as prisoners of war, provided they are in possession of a certificate from the military authorities of the army which they accompanied.1

1F. S. R. 1914, Art, VIII, pars. 426-431, pp. 168-9, Ariga, pp. 123-124. Certain newspaper correspondents, subjects of the United States, attached to the Russian Army, also a medical officer missionary captured by the Japanese at Lio Yang, were sent under guard to Japan. For forms of certificate, vide appendices A and B, this chapter.

47. What civilians made prisoners of war.-In addition to the armed forces, both combatant and noncombatant, and civilians authorized to accompany armies, the following may be made prisoners of war:

(a) The sovereign and members of the royal family, the President or head of a republican State, and the ministers who direct the policy of a State.1

1 G. O. 100, 1863, art. 50, par. 2.

(b) Civil officials and diplomatic agents attached to the army;

(c) Persons whose services are of particular use and benefit to the hostile army or its government, such as the higher civil officials, diplomatic agents, couriers, guides, etc.; also all persons who may be harmful to the opposing state while at liberty, such as prominent and influential political leaders, journalists, local authorities, clergymen, and teachers, in case they incite the people to resistance;

2

2 G. O. 100, 1863, art. 50, par. 2.

(d) The citizens who rise en masse to defend their territory or district from invasion by the enemy."

3 Vide supra, art. 36, and infra, art.: 869; also G, O. 100, 1863, arts. 49 and 51.

48. Military attachés and agents of neutrals.→Military attachés and diplomatic agents of neutral powers accompanying an army in the field, or found within a captured fortress, are not ordinarily held as prisoners, provided they have proper papers of identification in their possession and tak no part in the hostilities. They may, however, be ordered out of the theater of war, and, if necessary, handed over by the captor to the ministers of their respective countries.1

1 Ariga, p. 122. One foreign naval officer and two officers, military attachés, with the Russian army captured at Mukden by the Japanese were treated with consideration, and sent to Kobe, Japan, where they were turned over to their respective delegations.

49. Wounded and sick prisoners.-G. C., art. 2, par. 1. Subject to the care that must be taken of them under the preceding article (G. C., Art. I), the sick and wounded of an army who fall into the power of the other belligerent become prisoners of war, and the general rules of international law in respect to prisoners become applicable to them.

1 Vide infra, par. 107. As to treatment to be accorded to medical personnel and chaplains, vide G. C., art. 9, infra, par. 130.

50. H. R., Art. IV. Prisoners of war are in the power of the hostile government, but not of the individuals or corps who capture them. They must be humanely treated.

51. Subject to military jurisdiction.-All physical suffering, all brutality which is not necessitated as an indispensable measure for guarding prisoners, are formally prohibited. If prisoners commit crimes or acts punishable according to the ordinary penal or military laws, they are subjected to the military jurisdiction of the state of the captor.1

Lois de la Guerre Continentale, Jacomet, p. 31, art. 8.

All

52. Personal belongings retained.-H. R., Art. IV, par. 3. their personal belongings, except arms, horses, and military papers, remain their property.

53. Can not retain large sums of money. This rule does not authorize prisoners to retain large sums of money, or other articles which might facilitate their escape. Such money and articles are usually taken from them, receipts are given, and they are returned at the end of the war.1

1 Holland, Laws of War on Land, p. 21, art. 24; Opp. Land Warfare, par. 70 and note. They should be made to prove ownership of such money and articles to determine that they are not state property. Such property is subject to requisition as other property. Vide infra, arts. 345 et seq.

54. Belongings not transportable.-This rule does not compel the captor to be responsible for such personal belongings of prisoners as they are unable to transport with them.1

1 Ariga, p. 325.

55. Includes uniform, etc.-In practice personal belongings are understood to include military uniform, clothing, and kit required for personal use, although technically they may belong to their Government."

}

1 Opp. Land Warfare, par, 69 and note. Ariga, p. 161.

56. Booty. All captures and booty, except personal belongings of prisoners, become the property of the belligerent Government and not of individuals or units capturing them.1

1G. O. 100, 1863, art. 45. Vide infra, art. 337.

57. H. R., Art. IX. Every prisoner of war, if he is questioned on the subject, is bound to give his true name and rank, and if he infringes this rule he is liable to have the advantages accorded to prisoners of his class curtailed.

58. Although a prisoner of war is bound, under the penalties named, to state truthfully his name and rank, yet he is not bound to reply to other questions. The captor is entitled to take advantage of every means, humane and not coercive, in order to obtain all information possible from a prisoner with regard to the numbers, movements, and location of the enemy, but the prisoner can not be punished for giving false information about his own army.1

Kriegsbrauch, p. 16. Opp. Land Warfare, par. 68.

59. Internment.-H. R., Art. V. Prisoners of war may be interned in a town, fortress, camp, or other place, and bound not to go beyond certain fixed limits; but they can not be confined except as an indispensable measure of safety and only while the circumstances which necessitate the measure continue to exist..

60. Not criminals.-The distinction herein intended is between restriction to a specified locality and close confinement. Prisoners of war must not be regarded as criminals or convicts.

They are guarded as a measure of security and not of punishment.1

1 Holland, Laws of War on Land, par. 25. Opp. Land Warfare, pars. 86, 87.

61. Internment.-The object of internment is solely to prevent prisoners from further participation in the war. Anything, therefore, may be done that is necessary to secure this end, but nothing more. Restrictions and inconveniences are unavoidable, freedom of movement within the area of internment should be permitted unless there are special reasons to the contrary. The place selected for internment should not possess an injurious climate.1

1 Prisoners of war will usually be interned in some town, fortress, camp, or other place. Certain limits will be fixed, beyond which they are not permitted to go, and may be required to respond to certain roll calls and subjected to other surveillance to prevent their return to their own army. Opp. Land Warfare, par. 90.

62. Where confined.-Prisoners of war when confined for security should not be placed in prisons, penitentiaries, or other places for the imprisonment of convicts, but should be confined in rooms that are clean, sanitary, and as decent as possible.1

1 For disciplinary measures, vide H. R., Art. VIII infra, par. 67. 63. Maintained by captor.-H. R., Art. VII. The Government into whose hands prisoners of war have fallen is charged with their maintenance.

In the absence of a special agreement between the belligerents, prisoners of war shall be treated, as regards board, lodging, and clothing, on the same footing as the troops of the Government who captured them.1

1 The Japanese granted 60 yen (30 cents) per day to officers and 30 yen (15 cents) to noncommissioned officers and soldiers-Russian prisoners of war during captivity, which was nearly double the amount allowed for their own troops. (Ariga, p. 113.)

At the close of the Russo-Japanese War it was agreed in the treaty of peace that each belligerent should pay the cost of maintenance of its soldiers while prisoners of war.,

64. Captured supplies used.-Prisoners are only entitled to what is customarily used in the captor's country, but due allowance should, if possible, be made for differences of habits, and captured supplies should be used if they are available.

65. Can utilize services.-H. R., Art. VI. The State may utilize the labor of prisoners of war according to their rank and aptitude, officers excepted. The tasks shall not be excessive and shall have no connection with the operations of the war.

Prisoners may be authorized to work for the public service, for private persons, or on their own account. Work done for the State is paid at the rates in force for work of a similar kind done by soldiers of the national army, or, if there are none in force, at a rate according to the work executed.