Code of Conduct/International Law. Smith, "The Code of Conduct in Relation to International Law," 31 Mil. L. Rev. 85 (1966).

Study of Application. See US Army, Prisoner of War Study, Functioning of the Law (Harbridge House, 1969) (comprehensive historical analysis).

Internal Conflicts: Bond, Rules of Riot (1974); Falk, The International Law of Civil War (1971) (discusses inter alia Spain, Congo, US Civil War); Levie, op. cit., 323-354; and authorities in chapter 3, this publication, discussing guerrilla warfare. 'This is an important principle also found in Art 4, HR. "The only right that war gives over a captive is to secure his safekeeping and prevent him from doing harm" Montesquieu, The Spirit of the Law (book 15, chapter 2); ". . .War is a relation— not between man and man, but between state and state, in which individual combatants are only casually and accidentally enemies, not as men, or as citizens, but as soldiers." Jean Jacques Rousseau, quoted from Davis, "The Prisoner of War,” 7 Am. J. Int'l. L. 528 (1915). Article 12, GPW, also provides "Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them."

8 As to sick and wounded PWs, see also Art 12, GWS; On omission, see Levie, "Penal Sanctions for Maltreatment of Prisoners of War," 56 Am. J. Int'l. L. 453 (1962); The Essen Lynching Case, 3 UN War Crimes Reports 62 (1949); and Trial of Kurt Maelzer, 11 UN War Crimes Reports 53 (1949), 2 Schwarzenberger, International Law, International Courts, The Law of Armed Conflict 116 (1968).

9 FM 27-10, supra note 6, at 35; Castren, The Present Law of War and Neutrality 161 (1954); McDougal and Feliciano, Law and Minimum World Public Order 87 (1961); Digest of Laws and Cases, 15 UN War Crimes Reports 99 (1949).

10 DD Form 2 AF qualifies under the Geneva Conventions. See DOD Instruction 1000.1, 30 January 1974.

"No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them any information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." Art 17, GPW. Interrogators are not prohibited from asking questions beyond name, rank, and service number and dob; the problem is not the question asked but the manner employed in obtaining an answer. Glod and Smith, "Interrogation Under the 1949 Prisoners of War Convention," 21 Mil. L. Rev. 145, 148 (1963).

12 For example, on 3 July 1970, DOD Policy was announced in a letter to the Armed Forces, "The U.S. approves any honorable release and prefers sick and wounded and long term prisoners first."

Additionally, limited parole against escape is permitted for specific limited purposes as authorized by the senior officer exercising command authority. FM 27-10, supra note 6, at 73. The predecessor provision to the GPW Article on the subject was Article 10, HR.

13 On food, the 1949 Geneva Conventions abandoned an earlier "national standard" in favor of minimum absolute standards. For discussion, see Draper, supra note 6, at 58; Pictet, "The New Geneva Conventions for the Protection of War Victims," 45 Am. J. Int'l. L. 462, 472-473 (1951); ICRC, Commentary 199; Greenspan, Modern Law of Land Warfare 112 (1959).

14 See paragraph 12-2b, this publication. Article 33, GPW also provides, inter alia, "They shall, however, receive as a minimum the benefits and protection of the present Convention, and shall also be granted all facilities necessary to provide for the medical care of, and religious ministration to prisoners of war, Article 33 also regulates other matters with respect to medical personnel and chaplains who are "retained personnel." By virtue of their protected status, such personnel should normally be repatriated since retention is an exceptional measure. ICRC, Commentary at 218. Medical personnel and chaplains as noncombatants, see chapter 3, this publication; ICRC, Commentary at 223; Greenspan, supra note 13, at 78.

15 See also Greenspan, supra note 13, at 118; ICRC, Commentary at 259; Esgain and Solf, supra note 6, at 571; Levie, "Employment of Prisoners of War," 57 Am. J. Int'l. L. 318 (1963).

16 See also Greenspan, supra note 13, at 121; ICRC, Commentary at 299.

17 Prisoners representatives (in officers camps the senior officer present) have duties and responsibilities under Art 78-81, 98, 104, 107, 125 and 127, GPW. ICRC, Commentary 387. Correspondence. The Universal Postal Convention provides that letter post items, insured letters and boxes, parcel post, (up to 5 KG) and postal money orders addressed to or sent by prisoners of war and interned civilians are exempt from postal charges (subject, however, to air mail surcharge.) To enjoy these privileges the article must bear the notation "Service des internes" (Internees Service) at the top left hand corner. It can be followed by a translation. FM 27-10, supra note 6, at 58; Articles 14, 56, Universal Postal Convention of 14 Nov 1969, Article 115, Regulations, 22 UST 1085; TIAS 7150 (1971 Additional Protocol to the Constitution of the Universal Postal Union of 10 July 1964 (TIAS 5881). (Discussed historically by Spencer, "Franking Privileges for Communication with Prisoners of War," 35 Am. J. Int'l. L. 365 (1941). On the Code of Conduct under GPW, see Manes, "Barbed Wire Command: The Legal Nature of the Command Responsibilities of the Senior Prisoner in

a Prisoner of War Camp," Mil. L. Rev. 1 (Oct 1960) and Smith, "The Code of Conduct in Relation to International Law," 31 Mil. L. Rev. 85 (1966). 18 US personnel in foreign captivity are subject to trial, after repatriation, under the UCMJ for criminal acts committed while PWs. UCMJ §105; 10 U.S.C. $905; Winthrop, Military Law and Precedent 91 (1920); United States v. Batchelor, 19 CMR 452, 502 (ABR 1954), affirmed 7 USCMA 354, 22 CMR 144 (1956).

Penal and Disciplinary sanctions (which limit and enforce the principle of assimilation) are discussed in Greenspan, supra note 13, at 131; FM 27-10, at 62; ICRC, Commentary 406; Esgain and Solf, supra note 6, at 571.

19 Vietnam, see Analysis, supra note 2; and authorities supra note 6. The DRV reservation states:

The Democratic Republic of Vietnam declares that prisoners of war prosecuted for and convicted of war crimes or crimes against humanity, in accordance with the principles established by the Nuremberg Tribunal, will not enjoy the benefits of the provisions of the present Convention as provided in Article 85. (274 UNTS 340 (1957))

No US PWs were prosecuted by the North Vietnamese, hence the Reservation was not applicable. However, US air crew members were prosecuted (and some executed) during WW II by Japan for precapture "war crimes" involving bombardment. Glines, Doolittle's Tokoyo Raiders (1964); Spaight, Air Power and War Rights 58 (1947). On reservations to the Conventions generally, see AFP 110-20, at 1-101 and latest edition, U.S. Dept. of State, Treaties in Force, published annually.

20 Article 93 clearly indicates the intention of the Geneva Conventions to leave the PW out of the conflict (other than detention to prevent escape) in noting that, "In conformity with the principle [of leniency (Art 83)] offenses committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offenses against public property, theft without intention of self-enrichment, the drawing up or use of false papers, or the wearing of civilian clothing, shall occasion disciplinary punishment only." For discussion, see Greenspan, supra note 13, at 135; ICRC, Commentary at 444, 448. "A prisoner of war can legitimately try to escape from his captors . . .once escape has succeeded, the Detaining Power no longer has any authority over the prisoner of war . . ." While still an escaping prisoner, he is not a combatant hence "It is absolutely forbidden for him to commit any belligerent act, to carry weapons, or to engage in armed

resistance..." ICRC, Commentary 454. See also 2 Schwarzenberger, International Law, International Courts, The Law of Armed Conflict 123 (1968); Article 42, GPW, states:

The use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances.

21 See authorities cited supra note 6 as well as ICRC, Commentary 506 (noting extensive repatriations of sick and wounded during WW II); Greenspan, supra note 13, at 142.

22 Article 117 requires "No repatriated person may be employed on active military service." (derived from Art 74, 1929 GPW and Article 6, 1864 GWS); ICRC, Commentary 538 notes that this covers PWs under 109 and 110 during "... the whole duration of the hostilities in the course of which military personnel were captured and subsequently released, but only for the duration of the hostilities." In interpreting active military service, the spirit of the Convention should apply ". . . as broadly covering any participation, whether direct or indirect, in armed operations against the former Detaining Power or its allies," ICRC, Commentary at 539; FM 27-10, at 25, 76. Thus the term "active military service" is not equivalent to active duty, a common misconception.

23 Draper, supra note 6, at 69; Baxter, “Asylum to Prisoners of War," 30 Brit. Y. B. Int'l. L. 489 (1953); Charmatz and Wit, "Repatriation of POW's and the 1949 Geneva Convention," 62 Yale L. J. 391 (1953); Esgain and Solf, supra note 6, at 592; Mayda "The Korean Repatriation Problem and International Law," 47 Am. J. Int'l. L. 414 (1953): 10 Whiteman, Digest of International Law 203, 257, 503 (1968).

24 See chapter 11. Also see paragraph 15-2 for implementation provisions.

25 Articles 11 and 12, Hague V. For discussion, see 11 Whiteman, Digest of International Law 265 et seq. (1968); Greenspan, supra note 13, at 74. Also see Hague XIII, Art 24.

26 Article 4B(2), GPW.

27 Sick and wounded by own government. Article 14, Hague V; Article 37, GWS; 11 Whiteman. Digest of International Law 386 (1968). (Not interned if not stay)

Sick and wounded by captor. Article 14, Hague V (must be interned), see also Articles 15, 17, GWSSEA.

28 Article 13, Hague V (left at liberty). This applies also to PWs brought into neutral territory by troops taking refuge.

1

14-1. Introduction. The 1949 Geneva Convention protecting civilians (GC) represents a milestone in the international law regulating armed conflict. The 1907 Hague Regulations contain general protections applicable in war zones and specific protections applicable in occupied territory. The 1949 GC extends these protections in detail and applies specific protections to civilians in the hands of a Party to the conflict of which they are not nationals wherever they may be. The lack of any detailed treaty delineating the rights of civilians and the obligations of combatants toward civilians was viewed as a major defect in international treaty law regulating armed conflict, especially in light of the excesses of the Axis governments during World War II. The Fourth Geneva Convention (GC) was created to remedy this defect.

The 1949 Geneva Convention, broader in scope than earlier law, created a number of substantial international obligations for the parties. It therefore merits careful examination. What follows is only a brief description of its more important provisions. The Convention itself is complex and must be consulted as the authoritative formulation of its requirements.

14-2. Scope and Coverage of the Convention. Part I of the Convention contains general provisions relative to the entire Convention.

Part II of the Convention (Arts 13-26) deals with the general protection of populations against certain consequences of war.

Part III is the largest and most important portion of the Convention (Arts 27-141). It sets forth the principal obligations of the parties with respect to the two broad categories of persons which it protects: (a) aliens and other protected persons within the territory of a party to the conflict (Sec II) and

(b) persons residing in territory which is occupied by the enemy (Sec III).

Article 4 identifies as a person protected by the Convention anyone who, during a conflict or military occupation, is in the hands of a power of which he is not a national.2 The Convention does not protect nationals of a state not bound by it, nor does it protect nationals of a neutral state found within belligerent territory as long as the neutral state maintains diplomatic representation with the belligerent. Individuals protected by the other three 1949 Geneva Conventions are also excluded from the protection of the Fourth Convention.

Under Article 5, protected persons definitely suspected of hostile activities within the territory of a party lose only such rights and privileges under the Convention necessary for preservation of the state's security. Similarly, protected persons in occupied territory who are detained for spying or sabotage, or as persons under definite suspicion of activity hostile to the security of the occupying power, may be deprived of all rights of communication under the Convention (permitting contacts with relatives and the protecting power) where absolute military security so requires. However, such persons must be treated humanely and are guaranteed the right to a fair trial. In addition, they are to be granted the full rights and privileges of a protected person at the earliest date consistent with the security of the state or occupying power.

Articles 1-3 and 8-12 are those common articles already discussed in chapter 11 which concern the applicability of the Convention to undeclared war, protecting powers, internal conflicts and related matters.

14-3. General Protection of Civilians. 3 Article 14 encourages the parties to establish within their territories hospitals and safety