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they will not escape, nor bear arms against the captor, are valid; unless forbidden as provided in the next article, and the nation to which the service of such prisoners is due is bound to enforce such engage

ments.

Other engagements by prisoners of war inconsistent with their allegiance, are void.

Halleck, Intern. Law & Laws of War, p. 434, § 12; General Orders of U. S. War Department, 1863, vol. 2, p. 52, No. 49, § 12.

Paroles can only refer to the existing enemy and to his existing allies, and the existing war. Gen. Ord. of U. S. War Dep., 1863, vol. 2, p. 51, No. 49, § 9.

A military parol not to serve until exchanged must not be confounded with a parole of honor, to do or not to do a particular thing not inconsistent with the duty of a soldier; such as a parole of honor not to attempt to escape, given by a prisoner in actual custody, in order to obtain exemption from close guard or confinement. Such pledges, though binding, should be seldom given, for it is a prisoner's duty to escape if he can. Id., 1863, vol. 2, p. 237, No. 207, § 3.

It is the duty of the captor to guard his prisoners, and if, through necessity or choice, he fail to do so, it is the duty of the prisoner to return to the service of his government. He can not avoid this duty by giving an unauthorized parole. Id., 1863, vol. 2, p. 237, No. 207, § 2.

An officer who gives a parole for himself or his command on the battlefield, is deemed by the common law and usages of war, to be a deserter. Id., 1863, vol. 2, p. 51, No. 49, § 4.

Lieber, (Instructions, ¶¶ 126-128,) says, that 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; that no non-commissioned officer or private can give his parole except through an officer. And 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 battle-field, no paroling of entire bodies of troops after a battle, and no dismissal of large numbers of prisoners, with a general declaration that they are paroled, is permitted, or is of any value.

Forbidding parole.

818. A nation which provides adequately for the

support of prisoners taken by the enemy, may forbid their accepting a release on parole.

See Halleck, Intern. Law & Laws of War, p. 438, § 18, who says, a nation can not forbid a release on parole, unless at the same time it provides means of support during imprisonment.

Extortion of parole by ill usage.

819. A pledge or parole extorted from a prisoner by ill usage is not binding.

General Orders of U. S. War Dep., 1863, vol. 2, p. 237, No. 207, § 3.

Paroles to be reduced to writing.

820. When a parole is given and received, there must be an exchange of two documents, in which the name and rank of the person paroled are accurately stated.

And accurate lists of all paroled persons must be kept by the belligerents.

Lieber's Instructions, ¶¶ 124, 125.

Obligation of a parole.

821. An obligation by parole not to serve again during the war, forbids active service in the field or at sea, against the paroling belligerent or his allies, but does not forbid active service against other belligerents, nor interior service, such as recruiting or drilling recruits, fortifying places not besieged, or quelling civil commotions, nor civil, diplomatic, or other non-combatant service.

Lieber's Instructions, ¶ 130.

Violation of parole.

822. A prisoner who violates a lawful parole may be punished with death if recaptured.

Martens, Droit des Gens, tome II., § 275; Lieber's Instructions, ¶ 124. The modern practice usually is to abstain from the infliction of death, except in an aggravated case, and to substitute close confinement with severities and privations not cruel in their nature or degree.

Escapes.

823. A conspiracy among prisoners for a common escape is unlawful, and may be punished with death. An individual escape or attempt at escape by a prisoner of war, without conspiracy or violation of parole, is lawful; but a prisoner may lawfully be killed if discovered in flight.

Lieber's Instructions, ¶ 77.

On being recaptured the escaped prisoner can not be punished for such escape. Ib., ¶ 78.

"Hostage" defined.

824. A hostage is a person accepted as a pledge for the fulfillment of an agreement between belliger

ents.

Lieber's Instructions, ¶ 54. Hostages are now rarely given.

Treatment of hostages.

825. If the giver of a hostage fail to perform his obligation, the hostage may be retained; but neither death, nor any personal injury beyond detention by such means only as are necessary for enforcing the pledge, can be inflicted on him.'

In other respects, hostages are entitled to the immunities of prisoners of war.'

1 2 Phillimore's International Law, p. 68.

It has been said that a hostage is to be treated as a prisoner of war, but by this no more is meant than that he is not to be treated as a criminal. He is not subject to the peculiar liabilities nor has he the peculiar advantages of a prisoner of war. It is clear, says Phillimore, (vol. 2, p. 68,) that any proceeding of rigor against a hostage, even if he be forcibly seized in time of war, beyond what may be necessary for the security of his person, is illegal. Nor is he on the other hand entitled to exchange like a prisoner.

2 Bluntschli, Droit Intern. Codifié, § 600.

Death of hostage.

826. If a hostage die, the giver is not bound, except in case of an express stipulation, to replace him.

2 Phillimore's Intern. Law, p. 68.

Cartels.

827. It is the duty of belligerents to exchange prisoners of war, or allow them to be ransomed on reasonable terms.

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 by the government, or, at a great distance from it, by the chief commander of the army in the field.

Right of belligerent to retain prisoners.

828. A belligerent has the right to retain prisoners of war until the end of the war, if exchange can not be agreed on.

Vattel, Droit des Gens, liv. 3, ch. 8, § 153; Halleck, Intern. Law and Laws of War, p. 431, § 9.

Manner of exchanging prisoners.

829. Unless otherwise regulated by cartel or special agreement, exchanges of prisoners of war take place, number for number, rank for rank, wounded for wounded, with added condition for added condition, such, for instance, as not to serve for a certain period. Lieber's Instructions, ¶ 105.

Ransom.

830. Ransom for prisoners can be required only for those remaining upon one side after a general exchange has taken place,' and upon the authority of the nation by whose forces the capture was made.

An officer can not take ransom. Lieber's Instructions, ¶ 74.

Fioré, (Nouveau Droit Intern., vol. 2, p. 295,) condemns the alleged right to claim ransom.

1 See Lieber's Instructions, ¶ 108.

Cartel for exchange.

831. A cartel, for the exchange of prisoners, may be agreed on by the nation, or by the commander in the field or fleet.

See Lieber's Instructions, ¶ 106.

Breach of cartel.

832. A cartel may be terminated by either party, whenever violated by the other.

Lieber's Instructions, ¶ 109.

Cartel ships.

833. A cartel ship is one actually engaged by a belligerent for service in the transportation of prisoners taken in war, agreeably to a cartel for exchange.

A cartel ship should carry a pass from the nation employing it, and a flag of truce, with the flags of each belligerent displayed together.

See Lushington's Naval Prize Law, §§ 276, 277.

Protection of cartel ships.

834. Cartel ships, while actually and exclusively engaged in service as such, and in going to and returning from such service, if they engage in no other traffic or intercourse whatever, whether otherwise lawful or unlawful, and are guarded only by a sufficient force to suppress disorderly violence, are free from capture, and are to be respected and protected by each bellig

rent.

Kent, (1 Commentaries, p. 66,) says, that it is indispensable that a cartel for the exchange of prisoners be conducted with the most exact and exclusive attention to the original purpose, as being the condition upon which the intercourse by cartel ships can be tolerated. All trade, therefore, by means of such ships, is unlawful, without the express consent of both the governments concerned.

See Lushington's Naval Prize Law, § 275, where the rule is stated as excluding the carrying of cargo and engaging in unlawful intercourse. For the existing rules as to cartel ships, see Wildman, Intern. Law, v. 2, p. 30.

Compare Article 786.

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