IV Grotius, III. c. 21, §§ 23-30-Vattel, III. §§ 278-286--Hall, § 193— and Pur pose of § 224. Cartels are conventions between belli- Definition gerents concluded for the purpose of permitting certain kinds of non-hostile intercourse between one Cartels. another such as would otherwise be prevented through the condition of war. Cartels may be concluded during peace in case 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, may be arranged by cartels, or the exchange of prisoners, or a certain treatment of wounded, and the like. Thus, further, intercourse between each other's subjects through trade1 may, either within certain limits or unlimitedly, be agreed upon by belligerents. All rights and duties originat ing from cartels must be complied with in the same manner and good faith as rights and duties arising from other treaties. Ships. § 225. Cartel ships are vessels of belligerents Cartel which are commissioned for the carriage by sea of exchanged prisoners from the enemy country to their 1 See above, § 217. But arrangement for granting passports, safe-conducts, and safeguards- see above, §§ 218 and 219-is not 2 See above, § 190. 1 own country. Custom has sanctioned the following rules regarding these cartel ships for the purpose of securing their protection 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; 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 document 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, but also on their way home after such carriage and on their way to fetch prisoners.2 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. The Rosina, 2 Rob. 372; the Venus, 4 Rob. 355. 2 The Daifje, 3 Rob. 139; the La Gloire, 5 Rob. 192. Grotius, III. c. 22, § 9-Vattel, III. §§ 261-264-Hall, § 194— Lawrence, § 236-Phillimore, III. §§ 122-127-Halleck, II. pp. 319-322-Taylor, §§ 514-516-Wheaton, § 405-Bluntschli, §§ 697-699-Heffter, § 142-Lueder in Holtzendorff, IV. p. 527— Ullmann, § 157-Bonfils, Nos. 1259-1267-Despagnet, No. 561Pradier-Fodéré, VII. Nos. 2917-2926-Rivier, II. pp. 361-362Calvo, IV. §§ 2450-2452-Fiore, III. Nos. 1495-1497-Martens, II. § 127-Longuet, §§ 151-154-Mérignhac, pp. 225-230-Pillet, pp. 361-364-Kriegsgebrauch, pp. 38-41-Holland, War, No. 86. Purpose of tions. § 226. Capitulations are conventions between Character armed forces of belligerents regarding the surrender and of fortresses and other defended places, or of men- Capitulaof-war, or of a body of troops. Capitulations are military conventions only and exclusively; they must, therefore, not contain arrangements of another than a local military character concerning the surrendering forces, places, or ships. If they nevertheless contain such arrangements, the latter are not valid, except under the condition that they are ratified by the political authorities of both belligerents.1 The surrender of a certain place or force may, of course, be arranged by some convention containing other than military stipulations, but such surrender would then 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 only involving 1 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 attitude of Great Britain, and so do some foreign publicists, as, for instance, Contents lations. 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. § 227. If special conditions are not agreed upon of Capitu 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,1 such destruction is no longer lawful, and, if nevertheless carried out, constitutes a perfidy which may be punished as a war crime by the other party. But special conditions may be agreed upon between the forces concerned and 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 1 When, during the RussoJapanese War, in January 1905, General Stoessel, the Commander of Port Arthur, had, during negotiations for surrender, but before the capitulation was signed, fortifications blown up and vessels sunk, the Press undeservedly accused him of perfidy. U.S. Naval War Code, article 52, enacts 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." with the demands of military honour, and, when once settled, 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 special 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 have to march.1 Capitula § 228. No rule of International Law exists regard- Form of ing the form of capitulations, which may, therefore, tions. be concluded either orally or in writing. But they are usually concluded in writing. Negotiations for surrender, from whichever side they emanate, are usually sent under a flag of truce, but a force which is ready to surrender without special conditions can indicate their intention by hoisting a white flag as a signal that they abandon all and every resistance. The question whether the enemy must at once cease firing and accept the surrender, is to be answered During the Franco-German War the Germans granted these most favourable conditions to the French forces that surrendered |