CHAPTER IXWAR TREATIESThat Faith must be kept even with an Enemy.In the following pages we have only to do with war treaties in the narrower sense, that is such as are concluded during the war itself and have as their object either the regulation of certain relations during the period of the war, or only an isolated and temporary measure. It is a principle of all such treaties that: Etiam hosti fides servanda. Every agreement is to be strictly observed by both sides in the spirit and in the letter. Should this rule not be observed by one side then the other has the right to regard the treaty as denounced.How a treaty is to be concluded depends on the discretion of those who conclude it. Drafts or models of treaties do not exist.A.—Treaties of ExchangeExchange of Prisoners.These have for their object the mutual discharge or exchange of prisoners of war. Whether the opponent will agree to an offer of this kind or not, depends entirely upon himself.The usual stipulation is: An equal number onboth sides. That is only another way of saying that a surplus of prisoners on the one side need not be handed over.The restitution of a greater number of common soldiers against officers can be stipulated; in that case, the relative value of different grades must be precisely fixed in the treaty.B.—Treaties of CapitulationCapitulations—they cannot be too meticulous.The object of these is the surrender of fortresses or strong places as also of troops in the open field. Here again there can be no talk of a generally accepted model. The usages of war have, however, displayed some rules for capitulations, the observance of which is to be recommended:1. Before any capitulation is concluded, the authority of the Commander who concludes it should be formally and unequivocally authenticated. How necessary a precaution of this kind is, is shown by the capitulations of Rapp at Danzig, and of Gouvion St. Cyr at Dresden, in 1813, which were actually annulled by the refusal of the General Staff of the Allies to ratify them. At the trial of Bazaine the indictment by General Rivière denied the title of the Marshal to conclude a capitulation.2. If one of the parties to the treaty makes it a condition that the confirmation of the monarch, or the Commander-in-Chief, or even the national assembly is to be obtained, then this circumstancemust be made quite clear. Also care is to be taken that in the event of ratification being refused every advantage that might arise from an ambiguous proceeding on the part of one opponent, be made impossible.3. The chief effect of a capitulation is to prevent that portion of the enemy’s force which capitulates from taking any part in the conflict during the rest of the war, or it may be for a fixed period. The fate of the capitulating troops or of the surrendered fortress differs in different cases.80Inthe Treaty of Capitulation every condition agreed upon both as to time and manner must be expressed in precise and unequivocable words. Conditions which violate the military honor of those capitulated are not permissible according to modern views. Also, if the capitulation is an unconditional one or, to use the old formula, is “at discretion,” the victor does not thereby, according to the modern laws of war, acquire a right of life and death over the persons capitulating.4. Obligations which are contrary to the laws of nations,such as, for example, to fight against one’s own Fatherland during the continuation of the war, cannot be imposed upon the troops capitulating. Likewise, also, obligations such as are forbidden them by their own civil or military laws or terms of service, cannot be imposed.5. Since capitulations are treaties of war they cannot contain, for those contracting them, either rights or duties which extend beyond the period of the war, nor can they include dispositions as to matters of constitutional law such as, for example, a cession of territory.6. A violation of any of the obligations of the treaty of capitulation justifies an opponent in immediately renewing hostilities without further ceremony.Of the White Flag.The external indication of a desire to capitulate is the raising of a white flag. There exists no obligation to cease firing immediately on the appearance of this sign (or to cease hostilities). The attainment of a particular important, possibly decisive, point, the utilization of a favorable moment, the suspicion of an illicit purpose in raising the white flag, the saving of time, and the like, may induce the commanding officer to disregard the sign until these reasons have disappeared.If, however, no such considerations exist, then humanity imposes an immediate cessation of hostilities.C.—Safe-conductsOf Safe-Conducts.The object of these is to secure persons or things from hostile treatment. The usages of war in this matter furnish the following rules:1. Letters of safe-conduct, for persons, can only be given to such persons as are certain to behave peaceably and not to misuse them for hostile purposes; letters of safe-conduct for things are only to be granted under a guarantee of their not being employed for warlike purposes.2. The safe-conducts granted to persons are personal to them,i.e., they are not available for others. They do not extend to their companions unless they are expressly mentioned.An exception is only to be made in the case of diplomatists of neutral States, in whose case their usual entourage is assumed to be included even though the members are not specifically named.3. The safe-conduct is revocable at any time; it can even be altogether withdrawn or not recognized by another superior, if the military situation has so altered that its use is attended with unfavorable consequences for the party which has granted it.4. A safe-conduct for things on the other hand is not confined to the person of the bearer. It is obvious that if the person of the bearer appears at all suspicious, the safe-conduct can be withdrawn. This can also happen in the case of an officer who does not belong to the authority which granted it. The officer concerned is in this casefully responsible for his proceedings, and should report accordingly.D.—Treaties of ArmisticeOf Armistices.By armistice is understood a temporary cessation of hostilities by agreement. It rests upon the voluntary agreement of both parties. The object is either the satisfaction of a temporary need such as carrying away the dead, collecting the wounded, and the like, or the preparation of a surrender or of negotiations for peace.A general armistice must accordingly be distinguished from a local or particular one. The general armistice extends to the whole seat of war, to the whole army, and to allies; it is therefore a formal cessation of the war. A particular armistice on the contrary relates only to a part of the seat of war, to a single part of the opposing army. Thus the armistice of Poischwitz in the autumn of 1813 was a general armistice; that of January 28th, 1871, between Germany and France, was a particular or local one, since the South-Eastern part of the theater of war was not involved.The right to conclude an armistice, whether general or particular, belongs only to a person in high command,i.e., the Commander-in-Chief. Time to go and obtain the consent of the ruling powers may be wanting. However, if the object of the armisticeis to begin negotiations for peace, it is obvious that this can only be determined by the highest authorities of the State.If an agreement is concluded, then both sides must observe its provisions strictly in the letter and the spirit. A breach of the obligations entered into on the one side can only lead to the immediate renewal of hostilities on the other side.81A notification is in this case only necessary if the circumstances admit of the consequent loss of time. If the breach of the armistice is the fault of individuals, then the party to whom they belong is not immediately responsible and cannot be regarded as having broken faith. If, therefore, the behavior of these individuals is not favored or approved by their superiors, there is no ground for a resumption of hostilities. But the guilty persons ought, in such case, to be punished by the party concerned.Even though the other party does not approve the behavior of the trespassers but is powerless to prevent such trespasses, then the opponent is justifiedin regarding the armistice as at an end. In order to prevent unintentional violation both parties should notify the armistice as quickly as possible to all, or at any rate to the divisions concerned. Delay in the announcement of the armistice through negligence or bad faith lies, of course, at the door of him whose duty it was to announce it. A violation due to the bad faith of an individual is to be sternly punished.No one can be compelled to give credit to a communication from the enemy to the effect that an armistice has been concluded; the teaching of military history is full of warnings against lightly crediting such communications.82A fixed form for the conclusion of an armistice isnot prescribed. A definite and clear declaration is sufficient. It is usual and is advisable to have treaties of this kind in writing in order to exclude all complication, and, in the case of differences of opinion later on, to have a firm foundation to go upon.During the armistice nothing must occur which could be construed as a continuation of hostilities, thestatus quomust rather be observed as far as possible, provided that the wording of the treaty does not particularize anything to the contrary. On the other hand the belligerents are permitted to do everything which betters or strengthens their position afterthe expiry of the armistice and the continuation of hostilities. Thus, for example, troops may unhesitatingly be exercised, fresh ones recruited, arms and munitions manufactured, and food supplies brought up, troops shifted and reenforcements brought on the scene. Whether destroyed or damaged fortifications may also be restored is a question to which different answers are given by influential teachers of the law of nations. It is best settled by express agreement in concrete cases, and so with the revictualing of a besieged fortress.As regards its duration, an armistice can be concluded either for a determined or an undetermined period, and with or without a time for giving notice. If no fixed period is agreed upon, then hostilities can be recommenced at any time. This, however, is to be made known to the enemy punctually, so that the resumption does not represent a surprise. If a fixed time is agreed on, then hostilities can be recommenced the very moment it expires, and without any previous notification. The commencement of an armistice is, in the absence of an express agreement fixing another time, to date from the moment of its conclusion; the armistice expires at dawn of the day to which it extends. Thus an armistice made to last until January 1st comes to an end on the last hour of December 31st, and a shorter armistice withthe conclusion of the number of hours agreed upon; thus, for example, an armistice concluded on May 1st at 6P.M.for 48 hours last until May 3rd at 6P.M.
CHAPTER IXWAR TREATIES
That Faith must be kept even with an Enemy.
In the following pages we have only to do with war treaties in the narrower sense, that is such as are concluded during the war itself and have as their object either the regulation of certain relations during the period of the war, or only an isolated and temporary measure. It is a principle of all such treaties that: Etiam hosti fides servanda. Every agreement is to be strictly observed by both sides in the spirit and in the letter. Should this rule not be observed by one side then the other has the right to regard the treaty as denounced.
How a treaty is to be concluded depends on the discretion of those who conclude it. Drafts or models of treaties do not exist.
A.—Treaties of Exchange
Exchange of Prisoners.
These have for their object the mutual discharge or exchange of prisoners of war. Whether the opponent will agree to an offer of this kind or not, depends entirely upon himself.
The usual stipulation is: An equal number onboth sides. That is only another way of saying that a surplus of prisoners on the one side need not be handed over.
The restitution of a greater number of common soldiers against officers can be stipulated; in that case, the relative value of different grades must be precisely fixed in the treaty.
B.—Treaties of Capitulation
Capitulations—they cannot be too meticulous.
The object of these is the surrender of fortresses or strong places as also of troops in the open field. Here again there can be no talk of a generally accepted model. The usages of war have, however, displayed some rules for capitulations, the observance of which is to be recommended:
1. Before any capitulation is concluded, the authority of the Commander who concludes it should be formally and unequivocally authenticated. How necessary a precaution of this kind is, is shown by the capitulations of Rapp at Danzig, and of Gouvion St. Cyr at Dresden, in 1813, which were actually annulled by the refusal of the General Staff of the Allies to ratify them. At the trial of Bazaine the indictment by General Rivière denied the title of the Marshal to conclude a capitulation.2. If one of the parties to the treaty makes it a condition that the confirmation of the monarch, or the Commander-in-Chief, or even the national assembly is to be obtained, then this circumstancemust be made quite clear. Also care is to be taken that in the event of ratification being refused every advantage that might arise from an ambiguous proceeding on the part of one opponent, be made impossible.3. The chief effect of a capitulation is to prevent that portion of the enemy’s force which capitulates from taking any part in the conflict during the rest of the war, or it may be for a fixed period. The fate of the capitulating troops or of the surrendered fortress differs in different cases.80Inthe Treaty of Capitulation every condition agreed upon both as to time and manner must be expressed in precise and unequivocable words. Conditions which violate the military honor of those capitulated are not permissible according to modern views. Also, if the capitulation is an unconditional one or, to use the old formula, is “at discretion,” the victor does not thereby, according to the modern laws of war, acquire a right of life and death over the persons capitulating.4. Obligations which are contrary to the laws of nations,such as, for example, to fight against one’s own Fatherland during the continuation of the war, cannot be imposed upon the troops capitulating. Likewise, also, obligations such as are forbidden them by their own civil or military laws or terms of service, cannot be imposed.5. Since capitulations are treaties of war they cannot contain, for those contracting them, either rights or duties which extend beyond the period of the war, nor can they include dispositions as to matters of constitutional law such as, for example, a cession of territory.6. A violation of any of the obligations of the treaty of capitulation justifies an opponent in immediately renewing hostilities without further ceremony.
1. Before any capitulation is concluded, the authority of the Commander who concludes it should be formally and unequivocally authenticated. How necessary a precaution of this kind is, is shown by the capitulations of Rapp at Danzig, and of Gouvion St. Cyr at Dresden, in 1813, which were actually annulled by the refusal of the General Staff of the Allies to ratify them. At the trial of Bazaine the indictment by General Rivière denied the title of the Marshal to conclude a capitulation.
2. If one of the parties to the treaty makes it a condition that the confirmation of the monarch, or the Commander-in-Chief, or even the national assembly is to be obtained, then this circumstancemust be made quite clear. Also care is to be taken that in the event of ratification being refused every advantage that might arise from an ambiguous proceeding on the part of one opponent, be made impossible.
3. The chief effect of a capitulation is to prevent that portion of the enemy’s force which capitulates from taking any part in the conflict during the rest of the war, or it may be for a fixed period. The fate of the capitulating troops or of the surrendered fortress differs in different cases.80Inthe Treaty of Capitulation every condition agreed upon both as to time and manner must be expressed in precise and unequivocable words. Conditions which violate the military honor of those capitulated are not permissible according to modern views. Also, if the capitulation is an unconditional one or, to use the old formula, is “at discretion,” the victor does not thereby, according to the modern laws of war, acquire a right of life and death over the persons capitulating.
4. Obligations which are contrary to the laws of nations,such as, for example, to fight against one’s own Fatherland during the continuation of the war, cannot be imposed upon the troops capitulating. Likewise, also, obligations such as are forbidden them by their own civil or military laws or terms of service, cannot be imposed.
5. Since capitulations are treaties of war they cannot contain, for those contracting them, either rights or duties which extend beyond the period of the war, nor can they include dispositions as to matters of constitutional law such as, for example, a cession of territory.
6. A violation of any of the obligations of the treaty of capitulation justifies an opponent in immediately renewing hostilities without further ceremony.
Of the White Flag.
The external indication of a desire to capitulate is the raising of a white flag. There exists no obligation to cease firing immediately on the appearance of this sign (or to cease hostilities). The attainment of a particular important, possibly decisive, point, the utilization of a favorable moment, the suspicion of an illicit purpose in raising the white flag, the saving of time, and the like, may induce the commanding officer to disregard the sign until these reasons have disappeared.
If, however, no such considerations exist, then humanity imposes an immediate cessation of hostilities.
C.—Safe-conducts
Of Safe-Conducts.
The object of these is to secure persons or things from hostile treatment. The usages of war in this matter furnish the following rules:
1. Letters of safe-conduct, for persons, can only be given to such persons as are certain to behave peaceably and not to misuse them for hostile purposes; letters of safe-conduct for things are only to be granted under a guarantee of their not being employed for warlike purposes.2. The safe-conducts granted to persons are personal to them,i.e., they are not available for others. They do not extend to their companions unless they are expressly mentioned.An exception is only to be made in the case of diplomatists of neutral States, in whose case their usual entourage is assumed to be included even though the members are not specifically named.3. The safe-conduct is revocable at any time; it can even be altogether withdrawn or not recognized by another superior, if the military situation has so altered that its use is attended with unfavorable consequences for the party which has granted it.4. A safe-conduct for things on the other hand is not confined to the person of the bearer. It is obvious that if the person of the bearer appears at all suspicious, the safe-conduct can be withdrawn. This can also happen in the case of an officer who does not belong to the authority which granted it. The officer concerned is in this casefully responsible for his proceedings, and should report accordingly.
1. Letters of safe-conduct, for persons, can only be given to such persons as are certain to behave peaceably and not to misuse them for hostile purposes; letters of safe-conduct for things are only to be granted under a guarantee of their not being employed for warlike purposes.
2. The safe-conducts granted to persons are personal to them,i.e., they are not available for others. They do not extend to their companions unless they are expressly mentioned.
An exception is only to be made in the case of diplomatists of neutral States, in whose case their usual entourage is assumed to be included even though the members are not specifically named.
3. The safe-conduct is revocable at any time; it can even be altogether withdrawn or not recognized by another superior, if the military situation has so altered that its use is attended with unfavorable consequences for the party which has granted it.
4. A safe-conduct for things on the other hand is not confined to the person of the bearer. It is obvious that if the person of the bearer appears at all suspicious, the safe-conduct can be withdrawn. This can also happen in the case of an officer who does not belong to the authority which granted it. The officer concerned is in this casefully responsible for his proceedings, and should report accordingly.
Of Armistices.
By armistice is understood a temporary cessation of hostilities by agreement. It rests upon the voluntary agreement of both parties. The object is either the satisfaction of a temporary need such as carrying away the dead, collecting the wounded, and the like, or the preparation of a surrender or of negotiations for peace.
A general armistice must accordingly be distinguished from a local or particular one. The general armistice extends to the whole seat of war, to the whole army, and to allies; it is therefore a formal cessation of the war. A particular armistice on the contrary relates only to a part of the seat of war, to a single part of the opposing army. Thus the armistice of Poischwitz in the autumn of 1813 was a general armistice; that of January 28th, 1871, between Germany and France, was a particular or local one, since the South-Eastern part of the theater of war was not involved.
The right to conclude an armistice, whether general or particular, belongs only to a person in high command,i.e., the Commander-in-Chief. Time to go and obtain the consent of the ruling powers may be wanting. However, if the object of the armisticeis to begin negotiations for peace, it is obvious that this can only be determined by the highest authorities of the State.
If an agreement is concluded, then both sides must observe its provisions strictly in the letter and the spirit. A breach of the obligations entered into on the one side can only lead to the immediate renewal of hostilities on the other side.81A notification is in this case only necessary if the circumstances admit of the consequent loss of time. If the breach of the armistice is the fault of individuals, then the party to whom they belong is not immediately responsible and cannot be regarded as having broken faith. If, therefore, the behavior of these individuals is not favored or approved by their superiors, there is no ground for a resumption of hostilities. But the guilty persons ought, in such case, to be punished by the party concerned.
Even though the other party does not approve the behavior of the trespassers but is powerless to prevent such trespasses, then the opponent is justifiedin regarding the armistice as at an end. In order to prevent unintentional violation both parties should notify the armistice as quickly as possible to all, or at any rate to the divisions concerned. Delay in the announcement of the armistice through negligence or bad faith lies, of course, at the door of him whose duty it was to announce it. A violation due to the bad faith of an individual is to be sternly punished.
No one can be compelled to give credit to a communication from the enemy to the effect that an armistice has been concluded; the teaching of military history is full of warnings against lightly crediting such communications.82
A fixed form for the conclusion of an armistice isnot prescribed. A definite and clear declaration is sufficient. It is usual and is advisable to have treaties of this kind in writing in order to exclude all complication, and, in the case of differences of opinion later on, to have a firm foundation to go upon.
During the armistice nothing must occur which could be construed as a continuation of hostilities, thestatus quomust rather be observed as far as possible, provided that the wording of the treaty does not particularize anything to the contrary. On the other hand the belligerents are permitted to do everything which betters or strengthens their position afterthe expiry of the armistice and the continuation of hostilities. Thus, for example, troops may unhesitatingly be exercised, fresh ones recruited, arms and munitions manufactured, and food supplies brought up, troops shifted and reenforcements brought on the scene. Whether destroyed or damaged fortifications may also be restored is a question to which different answers are given by influential teachers of the law of nations. It is best settled by express agreement in concrete cases, and so with the revictualing of a besieged fortress.
As regards its duration, an armistice can be concluded either for a determined or an undetermined period, and with or without a time for giving notice. If no fixed period is agreed upon, then hostilities can be recommenced at any time. This, however, is to be made known to the enemy punctually, so that the resumption does not represent a surprise. If a fixed time is agreed on, then hostilities can be recommenced the very moment it expires, and without any previous notification. The commencement of an armistice is, in the absence of an express agreement fixing another time, to date from the moment of its conclusion; the armistice expires at dawn of the day to which it extends. Thus an armistice made to last until January 1st comes to an end on the last hour of December 31st, and a shorter armistice withthe conclusion of the number of hours agreed upon; thus, for example, an armistice concluded on May 1st at 6P.M.for 48 hours last until May 3rd at 6P.M.