NONHOSTILE RELATIONS OF BELLIGERENTS
All intercourse between the territories occupied by belligerent armies, whether by traffic, communication, travel, or in any other way, ceases. This is the general rule to be observed without special proclamation.
Exceptions to this rule, whether by safe-conduct, license to trade, exchange of mails, or travel from one territory into the other, are made on behalf of individuals only with the approval of the Government or the highest military authority.
The conduct of war and the restoration of peace require certain nonhostile relations between belligerents. These relations are conducted through parlementaires, military passports, safe-conducts, safeguards, cartels, capitulations, and armistices.
One belligerent may communicate with another directly by radio, through parlementaires, or in a conference, and indirectly through a Protecting Power, a third State other than a Protecting Power, or the International Committee of the Red Cross.
It is absolutely essential in all nonhostile relations that the most scrupulous good faith shall be observed by both parties, and that no advantage not intended to be given by the adversary shall be taken.
Persons within an area occupied by a belligerent may be protected from molestation or interference through military passports, safe-conducts, and safeguards. These devices are a matter of international law only when granted or posted by arrangement with the enemy.
A military passport is a document issued by order of a commander of belligerent forces, authorizing a person or persons named therein, residing or sojourning within territory occupied by such forces, to travel unmolested within such territory, with or without permission to pass, or to pass and return, by designated routes, through the lines, subject to such further conditions and limitations as the commander may prescribe.
a. General. Documents like passports, issued by the same authority and for similar purposes, to persons residing or sojourning outside of the occupied areas, who desire to enter and remain within or pass through such areas, are called safe-conducts. Similar documents, issued by the same authority, to persons residing within or without the occupied areas, to permit them to carry specified goods to or from designated places within those areas, and to engage in trade otherwise forbidden by the general rule of nonintercourse, are also called safe-conducts. Safe-conducts for goods in which the grantee is given a continuing right for a prescribed period, or until further orders, to engage in the specified trade, are sometimes called licenses to trade.
b. Safe-Conducts for Ambassadors and Diplomatic Agents. Ambassadors and other diplomatic agents of neutral powers, accredited to the enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there are military reasons to the contrary and unless they may reach the place of their destination conveniently by another route There is, however, no legal requirement that such safe-conducts be issued. Safe-conducts of this nature are usually given by the supreme authority of the State and not by subordinate officers.
A safeguard is a detachment, guard, or detail posted by a commander for the protection of persons, places, or property of the enemy, or of a neutral. The term also includes a written order left by a commander with an enemy subject or posted upon enemy property for the protection of the individual or property concerned. It is usually directed to the succeeding commander and requests the grant of protection. The effect of a safeguard is to pledge the honor of the nation that the person or property shall be respected by the national armed forces. The violation of a safeguard is a grave violation of the law of war and, if committed by a person subject to the Uniform Code of Military Justice, is punishable under Article 102 thereof with death or such other punishment as a court-martial may direct.
Soldiers on duty as safeguards occupy a protected status. They may not be attacked, and it is customary to send them back, together with their equipment and arms, to their own army when the locality is occupied by the enemy and as soon as military exigencies permit.
In the past, the normal means of initiating negotiations between belligerents has been the display of a white flag. In current practice, radio messages to the enemy and messages dropped by aircraft are becoming increasingly important as a prelude to conversations between representatives of the belligerent forces.
The white flag, when used by troops, indicates a desire to communicate with the enemy. The hoisting of a white flag has no other signification in international law. It may indicate that the party hoisting it desires to open communication with a view to an armistice or a surrender. If hoisted in action by an individual soldier or a small party, it may signify merely the surrender of that soldier or party. It is essential, therefore, to determine with reasonable certainty that the flag is shown by actual authority of the enemy commander before basing important action upon that assumption.
The enemy is not required to cease firing when a white flag is raised. To indicate that the hoisting is authorized by its commander, the appearance of the flag should be accompanied or followed promptly by a complete cessation of fire from that side. The commander authorizing the hoisting of the flag should also promptly send a parlementaire or parlementaires.
Parlementaires are agents employed by commanders of belligerent forces in the field, to go in person within the enemy lines, for the purpose of communicating or negotiating openly and directly with the enemy commander.
A person is regarded as a parlementaire who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and the interpreter who may accompany him. (HR, art. 32.)
Fire should not be intentionally directed on parlementaires or those accompanying them. If, however, the parlementaires or those near them present themselves during an engagement and are killed or wounded, it furnishes no ground for complaint. It is the duty of the parlementaire to select a propitious moment for displaying his flag, such as during the intervals of active operations, and to avoid dangerous zones by making a detour.
Parlementaires must be duly authorized in a written instrument signed by the commander of the forces.
The commander to whom a parlementaire is sent is not in all cases obliged to receive him.
He may take all the necessary steps to prevent the parlementaire taking advantage of his mission to obtain information.
In case of abuse, he has the right to detain the parlementaire temporarily. (HR, art. 33.)
A commander may declare the formalities and conditions upon which he will receive a parlementaire and fix the hour and place at which he must appear. The present rule is that a belligerent may not declare beforehand, even for a specified period-except in case of reprisal for abuses of the flag of truce-that he will not receive parlementaires. An unnecessary repetition of visits need not be allowed.
While within the lines of the enemy, the parlementaire must obey all instructions given him. He may be required to deliver his message to a subordinate of the commander.
In addition to the right of detention for abuse of his position, a parlementaire may be detained in case he has seen anything or obtained knowledge which may be detrimental to the enemy, or if his departure would reveal information on the movement of troops. He should be detained only so long as circumstances imperatively demand, and information should be sent at once to his commander as to such detention, as well as of any other action taken against him or against his party.
The parlementaire loses his rights of inviolability if it is proved in a clear and incontestable manner that he has taken advantage of his privileged position to provoke or commit an act of treachery. (HR, art. 34.)
It is an abuse of the flag of truce, forbidden as an improper ruse under Article 23 (f), HR (par. 52), for an enemy not to halt and cease firing while the parlementaire sent by him is advancing and being received by the other party; likewise, if the flag of truce is made use of for the purpose of inducing the enemy to believe that a parlementaire is going to be sent when no such intention exists. It is also an abuse of a flag of truce to carry out operations under the protection accorded by the enemy to it and those accompanying it. An individual or a party acts treacherously in displaying a white flag indicative of surrender as a ruse to permit attack upon the forces of the other belligerent. An abuse of a flag of truce may authorize a resort to reprisals.
If it is anticipated that negotiations between belligerents may be prolonged, a neutralized area may by agreement of the parties be set aside for the site of the negotiations. The belligerents may agree that no combat activity will take place within or over the area and that forces will be detailed to maintain the security of the area. The area designated as neutral on maps interchanged by representatives of the belligerents may be marked with searchlights, balloons, and other devices to insure that it will not be attacked.
In its narrower sense, a cartel is an agreement entered into by belligerents for the exchange of prisoners of war. In its broader sense, it is any convention concluded between belligerents for the purpose of arranging or regulating certain kinds of nonhostile intercourse otherwise prohibited by reason of the existence of the war. Both parties to a cartel are in honor bound to observe its provisions with the most scrupulous care, but it is voidable by either party upon definite proof that it has been intentionally violated in an important particular by the other party. (See par. 197.)
A capitulation is an agreement entered into between commanders of belligerent forces for the surrender of a body of troops, a fortress, or other defended locality, or of a district of the theater of operations. A surrender may be effected without resort to a capitulation.
Capitulations agreed upon between the contracting parties must take into account the rules of military honour.
Once settled, they must be scrupulously observed by both parties. (HR, art. 35.)
Subject to the limitations hereinafter indicated, the commander of a body of troops is presumed to be duly authorized to enter into capitulations. In the case of a commander of a military force of the United States, if continued battle has become impossible and he cannot communicate with his superiors, these facts will constitute proper authority to surrender. If a commander of military forces of the United States surrenders unnecessarily and shamefully or in violation of orders from higher authority, he is liable to trial and punishment (see UCMJ, Art. 99 (2)). The fact that any commander surrenders in violation of orders or the law of his own State does not impair the validity of the surrender. A commanding officer's powers do not extend beyond the forces and territory under his command. Unless so authorized by his government, he does not possess power to bind his government to a permanent cession of the place or places under his command, or to any surrender of sovereignty over territory, or to any cessation of hostilities in a district beyond his command, or to agree to terms of a political nature or such as will take effect after the termination of hostilities.
The surrender of a place or force may also be arranged by the political authorities of the belligerents without the intervention of the military authorities. In this case the capitulation may contain other than military stipulations.
There is no specified form for capitulation. They may be concluded either orally or in writing, but in order to avoid disputes, they should be reduced to writing. The agreement should contain in precise terms every condition to be observed on either side, excepting such conditions as are clearly imposed by the laws of war. Details of time and procedure should be prescribed in the most exact and unequivocal language. Even in case of an unconditional surrender, when the terms are dictated by the victor, they should nevertheless be embodied in a written capitulation as soon as practicable.
In the capitulation (the instrument of surrender), the following subjects are usually dealt with, insofar as they are relevent to the circumstance of the particular surrender:
a. The force or territory which is surrendered and the exact time at which the surrender is to take effect.
b. Disposition of the enemy forces. A stipulation is normally included concerning the movements and administration of the surrendered force after the surrender. The provisions of the capitulation may, for example, require that the troops assemble at designated points or that they remain in their present positions It is normally understood that the surrendered forces are to become prisoners of war. In the event both belligerents are parties to GPW, little or nothing more on that subject need be included in the capitulation. However, special circumstances, such as inability of the victor to guard, evacuate, and maintain large numbers of prisoners of war or to occupy the area in which enemy military forces are present, may justify the victorious commander in allowing the defeated force to remain in its present positions, to withdraw, or to disperse after having been disarmed and having given their paroles, provided that the giving of paroles is not forbidden by the laws of their own country and that they are willing to give their paroles (see par, 185).
c. If a place or area is surrendered, provisions relative to the withdrawal of the defenders and the entering into possession of the victorious troops. These matters should be fixed in advance with precision.
d. Disposition of medical personnel and the wounded and sick.
e. Disposition of prisoners of war, civilian internees, and other persons held in the custody of the surrendered troops.
f. Disarmament. Normally provisions are included to govern the disposition of enemy arms, equipment, and other property in the hands of the force which has surrendered. Officers are sometimes allowed to retain their side arms in addition to the articles they are allowed to keep under Article 18, GPW (par. 94).
g. Prohibition of destruction by the surrendered forces of their materiel or installations, or communications, transportation facilities, and other public utilities in the area concerned.
h. The provision of facilities and of information on such matters as minefield and other defense measures.
i. The civil administration of the area concerned, if a place or area is surrendered.
j. Orders given by the victor. It is normally stipulated that the orders of the victorious commander will be scrupulously carried out by the surrendered forces and that those who fail to comply with such orders or with the terms of the surrender itself will be severely punished.
From the moment of surrender the party surrendering has no right to demolish, destroy, or injure facilities, installations, or materiel under his control, unless otherwise stipulated in the capitulation. Nothing, however, prevents a commander who intends to surrender from carrying out such destruction, provided he does so before signing the capitulation.
Violation of the terms of a capitulation by individuals is punishable as a war crime. If the violation is directed by the commander who capitulated or by higher authority, the other belligerent may denounce the capitulation and resume hostilities. Like action may also be taken if the capitulation was obtained through a breach of faith.
An unconditional surrender is one in which a body of troops gives itself up to its enemy without condition. It need not be effected on the basis of an instrument signed by both parties. Subject to the restrictions of the law of war, the surrendered troops are governed by the directions of the State to which they surrender.
An armistice (or truce, as it is sometimes called) is the cessation of active hostilities for a period agreed upon by the belligerents. It is not a partial or temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties.
An armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not defined, the belligerent parties may resume operations at any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of the armistice. (HR, art. 36.)
The existence of an armistice does not warrant relaxation of vigilance in the service of security and protection, or in the preparedness of troops for action, or exposing positions to the enemy.
An armistice may be general or local. The first suspends the military operations of the belligerent States everywhere; the second only between certain fractions of the belligerent armies and within a fixed radius. (HR, art. 37.)
General armistices are usually of a combined political and military character. They usually precede the negotiations for peace, but may be concluded for other purposes. Due to its political importance, a general armistice is normally concluded by senior military officers or by diplomatic representatives or other high civilian officials. If an armistice contains political terms, it must be made under authorizaion from the governments concerned or subject to approval by them.
A local armistice suspends operations between certain portions of the belligerent forces or within a designated district of the theater of operations. A local armistice may be concluded by the military forces only, or by the naval forces only, or between a less number than all of the belligerents at war. Commanders of the forces concerned are presumed to be competent to conclude local armistices, and ratification upon the part of their governments is not required unless specially stipulated in the armistice agreement.
It is always a condition of a local armistice that a considerable part of the forces and the region of war must be included and that the cause for which it is concluded is not merely some pressing local interest, as in the case of a suspension of arms (see next paragraph), but one of a more general character, such as a general exhaustion of the opposing belligerent in one part of the theater of war.
A suspension of arms is a form of armistice concluded between commanders of military forces for some local military purpose, such as to bury the dead, to collect the wounded, to arrange for exchange of prisoners, or to enable a commander to communicate with his government or superior officer.
No special form for an armistice is prescribed. It should, if possible, be reduced to writing, in order to avoid misunderstandings and for the purpose of reference should differences of opinion arise. It should be drafted with the greatest precision and with absolute clearness.
Stipulations covering the following matters should be incorporated in an armistice:
a. Precise Date, Day, and Hour of Commencement of the Armistice. The precise date, day, and hour for the suspension of hostilities should also be stipulated. The effective times maybe different in different geographical areas. An armistice commences, in the absence of express mention to the contrary, at the moment it is signed.
b. Duration of the Armistice. The duration may be for a definite or indefinite period. In case it is indefinite, a belligerent may resume operations at any time after notice. The terms and manner of giving such notice should be specified. If a term is fixed and no agreement has been made for prolonging it, hostilities may be resumed without notice at the expiration of the term in the absence of positive agreement to the contrary.
c. Principal Lines and All Other Marks or Signs Necessary To Determine the Locations of the Belligerent Troops. For this purpose maps with the lines indicated thereon may be attached to and made part of the armistice. Provision may be included for a neutral zone between the two armies. It is usually agreed that these lines are not to be crossed or the neutral zone entered except by parlementaires or other parties by special agreement for specified purposes, such as to bury the dead and collect the wounded.
d. Relation of the Armies With the Local Inhabitants. If it is desired to make any change during the armistice in the relations between the opposing forces and the peaceable inhabitants, this must be accomplished by express provision. Otherwise these relations remain unchanged, each belligerent continuing to exercise the same rights as before, including the right to prevent or control all intercourse between the inhabitants within his lines and persons within the enemy lines.
e. Acts To Be Prohibited During the Armistice. In the absence of stipulations to the contrary, each belligerent is authorized to make movements of troops within his own lines, to receive reinforcements, to construct new fortifications, installations, and bases, to build and repair transportation and communications facilities, to seek information about the enemy, to bring up supplies and equipment, and, in general, to take advantage of the time and means at his disposal to prepare for resuming hostilities.
f. Disposition of Prisoners of War. If it is desired that prisoners of war and civilian internees should be released or exchanged, specific provisions in this regard should be made. (See GPW, art. 118; par. 198 herein.)
g. Consultative Machinery. It is generally desirable to provide for the establishment of a commission, composed of representatives of the opposing forces, to supervise the implementation of the armistice agreement. Additional commissions, composed of representatives of the belligerents or of neutral powers or both, may be constituted to deal with such matters as the repatriation of prisoners of war.
In addition to the provisions set forth in the preceding paragraph, general armistices normally contain a number of political and military stipulations concerning such matters as the evacuation of territory; disposition of aircraft and shipping; cooperation in the punishment of war crimes; restitution of captured or looted property; communications facilities and public utilities;. civil administration; displaced persons; and the dissolution of organizations which may subvert public order.
a. Treaty Provision.
It rests with the contracting parties to settle, in the terms of the armistice, what communications may be held in the theatre of war with the inhabitants and between the inhabitants of one belligerent State and those of the other. (HR, art. 39.)
b. Rule in Absence of Stipulation. If nothing is stipulated, the intercourse remains suspended, as during actual hostilities.
An armistice must be notified officially and in good time to the competent authorities and to the troops. Hostilities are suspended immediately after the notification, or on the date fixed. (HR, art. 38.)
An armistice is binding upon the belligerents from the time of the agreed commencement, but the officers of the armies are responsible only from the time when they receive official information of its existence.
Any serious violation of the armistice by one of the parties gives the other party the right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately. (HR, art. 40.)
An armistice, like other formal agreements between belligerents, engages the honor of both parties for the exact and complete fulfillment of every obligation thereby imposed. It would be an outrageous act of perfidy for either party, without warning, to resume hostilities during the period of an armistice, with or without a formal denunciation thereof, except in case of urgency and upon convincing proof of intentional and serious violation of its terms by the other party. Nevertheless, under the article last above quoted, upon definite proof of such a violation of the armistice, if the delay incident to formal denunciation and warning seems likely to give the violator a substantial advantage of any kind, the other party is free to resume hostilities without warning and with or without a formal denunciation.
a. Treaty Provision.
A violation of the terms of the armistice by private persons acting on their own initiative only entitles the injured party to demand the punishment of the offenders or, if necessary, compensation for the losses sustained. (HR, art. 41.)
b. Private Individuals Defined. A private individual, in the sense of the foregoing article, refers to any person, including a member of the armed forces, who acts on his own responsibility.
c. Effect of Violation of Armistice by Individuals. Violation of the terms of an armistice by individuals is punishable as a war crime. Such violations by individual soldiers or subordinate officers do not justify denunciation of the armistice unless they are proved to have been committed with the knowledge and actual or tacit consent of their own government or commander. Consent may be inferred in the event of a persistent failure to punish such offenders.
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