[Footnote 137: See Wheaton, § 357; Taylor, § 496; Walker, p. 135, and _Science_, p. 268.] [Footnote 138: See below, § 181, and Hall, § 183.] [Footnote 139: See Vattel, III. § 226, and G. F. Martens, II. § 289.] It should be mentioned in regard to the fate of the crews of captured merchantmen that a distinction is to be made according as to whether or no a vessel has defended herself against a legitimate attack. In the first case the members of the crew become prisoners of war, for by legitimately taking part in the fighting they have become members of the armed forces of the enemy.[140] In the second case, articles 5 to 7 of Convention XI. of the Second Peace Conference enact the following rules:[141]-- (1) Such members of the crew as are subjects of neutral States may not be made prisoners of war. (2) The captain and the officers who are subjects of neutral States may only be made prisoners if they refuse to give a promise in writing not to serve on an enemy ship while the war lasts. (3) The captain, officers, and such members of the crew who are enemy subjects may only be made prisoners if they refuse to give a written promise not to engage, while hostilities last, in any service connected with the operations of war. (4) The names of all the individuals retaining their liberty under parole must be notified by the captor to the enemy, and the latter is forbidden knowingly to employ the individuals concerned in any service prohibited by the parole. [Footnote 140: This follows indirectly from article 8 of Convention XI.] [Footnote 141: See below, § 201.] [Sidenote: Deserters and Traitors.] § 86. The privileges of members of armed forces cannot be claimed by members of the armed forces of a belligerent who go over to the forces of the enemy and are afterwards captured by the former. They may be, and always are, treated as criminals. And the like is valid with regard to such treasonable subjects of a belligerent as, without having been members of his armed forces, are fighting in the armed forces of the enemy. Even if they appear under the protection of a flag of truce, deserters and traitors may be seized and punished.[142] [Footnote 142: See below, § 222; Hall, § 190; _Land Warfare_, § 36.] VII ENEMY CHARACTER