International Law. A Treatise Volume Ii Part 31

III

FLAGS OF TRUCE

Hall, -- 190--Lawrence, -- 211--Westlake, II. p. 81--Moore, VII. -- 1157--Phillimore, III. -- 115--Halleck, II. pp. 333, 334--Taylor, -- 510--Bluntschli, ---- 681-684--Heffter, -- 126--Lueder in Holtzendorff, IV. pp. 421-423--Ullmann, -- 180--Bonfils, Nos.

1239-1245--Despagnet, Nos. 556-557--Pradier-Fodere, VII. Nos.

2927-2931--Rivier, II. pp. 279-280--Calvo, IV. ---- 2430-2432--Fiore, III. No. 1378, and Code, Nos.

1495-1500--Martens, II. -- 127--Longuet, ---- 136-138--Merignhac, pp.

220-225--Pillet, pp. 356-358--Zorn, pp. 195-199--Meurer, II. ---- 39-40--Bordwell, p. 293--Spaight, pp. 216-231--_Kriegsbrauch_, pp.

26-29--Holland, _War_, Nos. 88-91--_Land Warfare_, ---- 224-255.

[Sidenote: Meaning of Flags of Truce.]

-- 220. Although the outbreak of war brings all negotiations between belligerents to an end, and although no negotiations are as a rule conducted during war, certain circ.u.mstances and conditions make it necessary or convenient for the armed forces of belligerents to enter into negotiations with each other for various purposes. Since time immemorial a white flag has been used as a symbol by an armed force wishing to negotiate with the enemy, and always and everywhere it has been considered a duty of the enemy to respect this symbol. In land warfare the flag of truce is made use of in the following manner.[435]

An individual--soldier or civilian--charged by his force with the task of negotiating with the enemy, approaches the latter either carrying the flag himself, or accompanied by a flag-bearer and, often, also by a drummer, a bugler, or a trumpeter, and an interpreter. In sea warfare the individual charged with the task of negotiating approaches the enemy in a boat flying the white flag. The Hague Regulations have now by articles 32 to 34 enacted most of the customary rules of International Law regarding flags of truce without adding any new rule. These rules are the same for land warfare as for sea warfare, although their validity for land warfare is now grounded on the Hague Regulations, whereas their validity for sea warfare is still based on custom only.

[Footnote 435: See Hague Regulations, article 32.]

[Sidenote: Treatment of Unadmitted Flag-bearers.]

-- 221. As a commander of an armed force is not, according to article 33 of the Hague Regulations, compelled to receive a bearer of a flag of truce, a flag-bearer who makes his appearance may at once be signalled to withdraw. Yet even then he is inviolable from the time he displays the flag to the end of the time necessary for withdrawal. During this time he may neither be intentionally attacked nor made prisoner.

However, an armed force in battle is not obliged to stop its military operations on account of the approach of an enemy flag-bearer who has been signalled to withdraw. Although the latter may not be fired upon intentionally, should he be wounded or killed accidentally, during the battle, no responsibility or moral blame would rest upon the belligerent concerned. In former times the commander of an armed force could inform the enemy that, within a certain defined or indefinite period, he would under no circ.u.mstances or conditions receive a flag-bearer; if, in spite of such notice, a flag-bearer approached, he did not enjoy any privilege, and he could be attacked and made prisoner like any other member of the enemy forces. But this rule is now obsolete, and its place is taken by the rule that a commander must never, except in a case of reprisals, declare beforehand, even only for a specified period, that he will not receive a bearer of a flag of truce.[436]

[Footnote 436: This becomes quite apparent from the discussion of the subject at the First Peace Conference; see Martens, _N.R.G._ 2nd Ser.

XXVI. p. 465; and _Land Warfare_, -- 234.]

[Sidenote: Treatment of Admitted Flag-bearers.]

-- 222. Bearers of flags of truce and their parties, when admitted by the other side, must be granted the privilege of inviolability. They may neither be attacked nor taken prisoners, and they must be allowed to return safely in due time to their own lines. On the other hand, the forces admitting enemy flag-bearers need not allow them to acquire information about the receiving forces and to carry it back to their own corps. Flag-bearers and their parties may, therefore, be blindfolded by the receiving forces, or be conducted by roundabout ways, or be prevented from entering into communication with individuals other than those who confer officially with them, and they may even temporarily be prevented from returning till a certain military operation of which they have obtained information is carried out. Article 33 of the Hague Regulations specifically enacts that a commander to whom a flag of truce is sent "may take all steps necessary to prevent the envoy taking advantage of his mission to obtain information." Bearers of flags of truce are not, however, prevented from reporting to their corps any information they have gained by observation in pa.s.sing through the enemy lines and in communicating with enemy individuals. But they are not allowed to sketch maps of defences and positions, to gather information secretly and surrept.i.tiously, to provoke or to commit treacherous acts, and the like. If nevertheless they do any of these acts, they may be court-martialed. Articles 33 and 34 of the Hague Regulations specifically enact that a flag-bearer may temporarily be detained in case he abuses his mission for the purpose of obtaining information, and that he loses all privileges of inviolability "if it is proved beyond doubt that he has taken advantage of his privileged position to provoke or commit an act of treachery." Bearers of white flags and their party, who approach the enemy and are received, must carry[437] some authorisation with them to show that they are charged with the task of entering into negotiations (article 32), otherwise they may be detained as prisoners, since it is his mission and not the white flag itself which protects the flag-bearer. This mission protects every one who is charged with it, notwithstanding his position in his corps and his status as a civilian or a soldier, but it does not protect a deserter.

The latter may be detained, court-martialed, and punished, notice being given to his princ.i.p.al of the reason of punishment.[438]

[Footnote 437: Article 32 of the Hague Regulations confirms this customary rule by speaking of an individual who is "authorised" by one of the belligerents to enter into communication with the other.]

[Footnote 438: See Hall, -- 190.]

[Sidenote: Abuse of Flag of Truce.]

-- 223. Abuse of his mission by an authorised flag-bearer must be distinguished from an abuse of the flag of truce itself. Such abuse is possible in two different forms:--

(1) The force which sends an authorised flag-bearer to the enemy has to take up a corresponding att.i.tude; the ranks which the flag-bearer leaves being obliged to halt and to cease fire. Now it const.i.tutes an abuse of the flag of truce if such att.i.tude corresponding with the sending of a flag of truce is intentionally not taken up by the sending force. The case is even worse when a flag-bearer is intentionally sent on a feigned mission in order that military operations may be carried out by the sender under the protection due from the enemy to the flag-bearer and his party.

(2) The second form of a possible abuse appears in the case in which a white flag is made use of for the purpose of making the enemy believe that a flag of truce is about to be sent, although it is not sent, and of carrying out operations under the protection granted by the enemy to this pretended flag of truce.

It need hardly be specially mentioned that both forms of abuse are gross perfidy and may be met with reprisals, or with punishment of the offenders in case they fall into the hands of the enemy. The following case of abuse is related by Sir Sherston Baker in Halleck (II. p.

315):--"On July 12, 1882, while the British fleet was lying off Alexandria, in support of the authority of the Khedive of Egypt, and the rebels under Arabi Pasha were being driven to great straits, a rebel boat, carrying a white flag of truce, was observed approaching H.M.S.

_Invincible_ from the harbour, whereupon H.M. ships _Temeraire_ and _Inflexible_, which had just commenced firing, were ordered to suspend fire. So soon as the firing ceased, the boat, instead of going to the _Invincible_, returned to the harbour. A flag of truce was simultaneously hoisted by the rebels on the Ras-el-Tin fort. These deceits gave the rebels time to leave the works and to retire through the town, abandoning the forts, and withdrawing the whole of their garrison under the flag of truce."

IV

CARTELS

Grotius, III. c. 21, ---- 23-30--Vattel, III. ---- 278-286--Hall, -- 193--Lawrence, -- 212--Westlake, II. p. 139--Phillimore, III. ---- 111-112--Halleck, II. pp. 326-329--Taylor, -- 599--Bluntschli, ---- 679-680--Heffter, -- 142--Lueder in Holtzendorff, IV. pp.

525-529--Ullmann, -- 185--Bonfils, Nos. 827 and 1280--Despagnet, No. 658--Pradier-Fodere, VII. Nos. 2832-2837, 2888--Rivier, II. p.

360--Nys, III. pp. 521-525--Calvo, IV. ---- 2419-2429--Longuet, ---- 140, 141--Pillet, p. 359--_Kriegsbrauch_, p. 38--Holland, _War_, No. 100, and _Prize Law_, ---- 32-35--_Land Warfare_, ---- 338-339.

[Sidenote: Definition and Purpose of Cartels.]

-- 224. Cartels are conventions between belligerents concluded for the purpose of permitting certain kinds of non-hostile intercourse between one another such as would otherwise be prevented by the condition of war. Cartels may be concluded during peace in antic.i.p.ation of war, or during the time of war, and they may provide for numerous purposes.

Thus, communication by post, telegraph, telephone, and railway, which would otherwise not take place, can be arranged by cartels, as can also the exchange of prisoners, or a certain treatment of wounded, and the like. Thus, further, intercourse between each other's subjects through trade[439] can, either with or without limits, be agreed upon by belligerents. All rights and duties originating from cartels must be complied with in the same manner and good faith as rights and duties arising from other treaties.

[Footnote 439: See above, -- 217. But arrangements for granting pa.s.sports, safe-conducts, and safeguards--see above, ---- 218 and 219--are not a matter of cartels.]

[Sidenote: Cartel Ships.]

-- 225. Cartel ships[440] are vessels of belligerents which are commissioned for the carriage by sea of exchanged prisoners from the enemy country to their own country, or for the carriage of official communications to and from the enemy. Custom has sanctioned the following rules regarding these cartel ships for the purpose of securing protection for them on the one hand, and, on the other, their exclusive employment as a means for the exchange of prisoners: Cartel ships must not do any trade or carry any cargo or despatches;[441] they are especially not allowed to carry ammunition or instruments of war, except one gun for firing signals. They have to be furnished with a doc.u.ment from an official belonging to the home State of the prisoners and stationed in the country of the enemy declaring that they are commissioned as cartel ships. They are under the protection of both belligerents and may neither be seized nor appropriated. They enjoy this protection not only when actually carrying exchanged prisoners or official communications, but also on their way home after such carriage and on their way to fetch prisoners or official communications.[442]

They lose the protection at once, and may consequently be seized and eventually be appropriated, in case they do not comply, either with the general rules regarding cartel ships, or with the special conditions imposed upon them.

[Footnote 440: See above, -- 190.]

[Footnote 441: The _La Rosina_ (1800), 2 C. Rob. 372; the _Venus_ (1803), 4 C. Rob. 355.]

[Footnote 442: The _Daifje_ (1800), 3 C. Rob. 139; the _La Gloire_ (1804), 5 C. Rob. 192.]

V

CAPITULATIONS

Grotius, III. c. 22, -- 9--Vattel, III. ---- 261-264--Hall, -- 194--Lawrence, -- 215--Westlake, II. p. 81--Phillimore, III. ---- 122-127--Halleck, II. pp. 319-322--Taylor, ---- 514-516--Wheaton, -- 405--Moore, VII. -- 1160--Bluntschli, ---- 697-699--Heffter, -- 142--Lueder in Holtzendorff, IV. p. 527--Ullmann, -- 185--Bonfils, Nos. 1259-1267--Despagnet, No. 562--Pradier-Fodere, VII. Nos.

2917-2926--Rivier, II. pp. 361-362--Nys, III. pp. 514-517--Calvo, IV. ---- 2450-2452--Fiore, III. Nos. 1495-1497, and Code, Nos.

1733-1740--Martens, II. -- 127--Longuet, ---- 151-154--Merignhac, pp.

225-230--Pillet, pp. 361-364--Bordwell, p. 294--Meurer, II. ---- 41-42--Spaight, pp. 249-259--_Kriegsbrauch_, pp. 38-41--Holland, _War_, No. 92--_Land Warfare_, ---- 301-325.

[Sidenote: Character and Purpose of Capitulations.]

-- 226. Capitulations are conventions between armed forces of belligerents stipulating the terms of surrender of fortresses and other defended places, or of men-of-war, or of troops. It is, therefore, necessary to distinguish between a _simple_ and a _stipulated_ surrender. If one or more soldiers lay down their arms and surrender, or if a fortress or a man-of-war surrenders without making any terms whatever, there is no capitulation, for capitulation is a convention stipulating the terms of surrender.

Capitulations are military conventions only and exclusively; they must not, therefore, contain arrangements other than those of a local and military character concerning the surrendering forces, places, or ships. If they do contain such arrangements, the latter are not valid, unless they are ratified by the political authorities of both belligerents.[443] The surrender of a certain place or force may, of course, be arranged by some convention containing other than military stipulations, but then such surrender would not originate from a capitulation. And just as is their character, so the purpose of capitulations is merely military--namely, the abandonment of a hopeless struggle and resistance which would only involve useless loss of life on the part of a hopelessly beset force. Therefore, whatever may be the indirect consequences of a certain capitulation, its direct consequences have nothing to do with the war at large, but are local only and concern the surrendering force exclusively.

[Footnote 443: See Phillimore, III. -- 123, who discusses the promise of Lord William Bentinck to Genoa, in 1814, regarding its independence, which was disowned by the British Government. Phillimore himself disapproves of the att.i.tude of Great Britain, and so do some foreign publicists, as, for instance, Despagnet (No. 562); but the rule that capitulations are military conventions, and that, therefore, such stipulations are not valid as are not of a local military character, is indubitable.]

[Sidenote: Contents of Capitulations.]

-- 227. If special conditions are not agreed upon in a capitulation, it is concluded under the obvious condition that the surrendering force become prisoners of war, and that all war material and other public property in their possession or within the surrendering place or ship are surrendered in the condition they were at the time when the signature was given to the capitulation. Nothing prevents a force fearing surrender from destroying their provisions, munitions, their arms and other instruments of war which, when falling into the hands of the enemy, would be useful to him. Again, nothing prevents a commander, even after negotiations regarding surrender have begun, from destroying such articles. But when once a capitulation has been signed,[444] such destruction is no longer lawful, and, if carried out, const.i.tutes perfidy which may be punished by the other party as a war crime.

[Footnote 444: When, during the Russo-j.a.panese War, in January 1905, General Stoessel, the Commander of Port Arthur, had fortifications blown up and vessels sunk, during negotiations for surrender, but before the capitulation was signed, the Press undeservedly accused him of perfidy.

U.S. Naval War Code, article 52, enacted the right principle, that "_after agreeing upon or signing_ a capitulation, the capitulator must neither injure nor destroy the vessels, property, or stores in his possession that he is to deliver up, unless the right to do so is expressly reserved to him in the agreement or capitulation."]

But special conditions may be agreed upon between the forces concerned, and they must then be faithfully adhered to by both parties. The only rule which article 35 of the Hague Regulations enacts regarding capitulations is that the latter must be in accordance with the demands of military honour, and that, when once settled, they must be scrupulously observed. It is instructive to give some instances of possible conditions:--A condition of a capitulation may be the provision that the convention shall be valid only if within a certain period relief troops are not approaching. Provision may, further, be made that the surrendering forces shall not in every detail be treated like ordinary prisoners of war. Thus it may be stipulated that the officers or even the soldiers shall be released on parole, that officers remaining prisoners shall retain their swords. Whether or not a belligerent will grant or even offer such specially favourable conditions depends upon the importance of the force, place, or ship to be surrendered, and upon the bravery of the surrendering force. There are even instances of capitulations which stipulated that the surrendering forces should leave the place with full honours, carrying their arms and baggage away and joining their own army unmolested by the enemy through whose lines they had to march.[445]