Competence to conclude tions. in the affirmative, provided he is certain that the white flag was hoisted by order or with the authority of the commander of the respective force. As, however, such hoisting may well have taken place without the authority of the commander and may, therefore, be disowned by the latter, no duty exists for the enemy to cease his attack as long as he is not convinced that the white flag really indicates the intention of the commander to surrender. § 229. The competence to conclude capitulations is vested in the commanders of the forces opposing Capitula- each other. Capitulations entered into by unauthorised subordinate officers may, therefore, be disowned by the commander concerned without breach of faith. As regards special conditions of capitulations, it must be specially observed that the competence of a commander to grant them is limited1 to those the fulfilment of which depends entirely upon the forces under his command. If he grants conditions against his instructions, his superiors may disown such conditions. And the same is valid if he grants conditions the fulfilment of which depends upon other forces than his own and upon superior officers. The capitulation in El Arish on January 24, 1800, between the French General Kléber and the Turkish Grand Vizier, and approved by the British Admiral, Sir Sidney Smith, presents an illustrative example of this rule. As General Kléber, who was commanding the French army in Egypt, thought that he could not remain in Egypt, he proposed surrender under the condition that his army should be safely transported to France, carrying away their arms and baggage. The Grand Vizier accepted these conditions. The British Admiral, Sir Sidney Smith, who approved of these 1 See U.S. Naval War Code, article 51. 2 Martens, R., VII. p. 1. conditions, was the local commander on the coast of Egypt, but was an inferior officer to Lord Keith, the commander of the British Mediterranean fleet. The latter had, on January 8, 1800, received secret orders, dated December 15, 1799, from the British Government not to agree upon any capitulation stipulating the free return of Kléber's army to France. Sir Sidney Smith did, however, not receive instructions based on these orders before February 22, 1800, and, therefore, when he approved of the capitulation of El Arish in January, was not aware that he acted against orders of the British Government.1 Lord Keith, after having received the above orders on January 8, 1800, wrote at once to General Kléber, pointing out that he was not allowed to grant the return of the French army to France.2 On the other hand, the British Government, after having been informed that Sir Sidney Smith had approved of the return of the French army, sent on March 28, 1800, fresh orders 3 to Lord Keith, received by him at the end of April, advising him, although Sir Sidney Smith had exceeded his competence, to allow the capitulation to be carried out and the French army to be safely transported to France. Meanwhile, however, events had taken another turn. When General Kléber had on March 17, 1800, received Lord Keith's letter of January 8, he addressed a proclamation, in which Lord Keith's letter was embodied, to his troops, asked them to prepare themselves for battle, and actually began hostilities again on March 20. He was assassinated on June 14, and General Menou took over the command, and it was the latter who received, on June 20, 1800, informa 1 Martens, R., VII. pp. 8 and 9. 2 Martens, R., VII. p. 10. VOL. II. 3 Martens, R., VII. p. 11. R Violation of Capitulations. tion of the changed attitude of the British Government regarding the capitulation of El Arish. Hostilities having been renewed as far back as March, General Menou refused on his part to consent to the carrying out of the capitulation, and continued hostilities. It is obvious that Sir Sidney Smith, in approving the capitulation, granted a condition which did not depend entirely upon himself and the forces under himself, but depended upon Lord Keith and his fleet. Lord Keith as well as the British Government could have lawfully disowned this condition. That the British Government did not do so, but was ready to ratify Sir Sidney Smith's approval, was due to the fact that it did not want to disavow Sir Sidney Smith's promises, who was not at the time aware of the orders of his Government to Lord Keith. On the other hand, the French Generals were not wrong in resuming hostilities after having received Lord Keith's first information, as thereby the capitulation fell to the ground. § 230. That capitulations must be scrupulously adhered to is an old customary rule, now enacted by article 35 of the Hague Regulations. Any act contrary to a capitulation would constitute an international delinquency when ordered by the belligerent Government concerned, and a war-crime when committed without such order. Such violation may be met with reprisals or punishment of the offenders as war-criminals. 1 Martens, R., VII. p. 16. VI Grotius, III. c. 21, §§ 1-13, c. 22, § 8-Pufendorf, VIII. c. 7, §§ 3-12Vattel, III. §§ 233-260-Hall, § 192-Lawrence, § 237-Phillimore, III. §§ 116-121-Halleck, II. pp. 311-319-Taylor, §§ 513 and 516-Wheaton, §§ 400-404-Bluntschli, §§ 688-699-Heffter, § 142-Lueder in Holtzendorff, IV. pp. 531-544-Ullmann, § 158-Bonfils, Nos. 1248-1258-Despagnet, Nos. 562-565— Pradier-Fodéré, VII. Nos. 2889-2918-Rivier, II. pp. 362-368Calvo, IV. § 2433-2449-Fiore, III. Nos. 1484-1494-Martens, II. § 127-Longuet, §§ 145-149-Mérignhac, pp. 230-239-Pillet, pp. 364-370-Kriegsgebrauch, pp. 41-44-Holland, War, Nos. 87-94. and kinds § 231. Armistices or truces, in the wider sense of Character the term, are all agreements of belligerent forces forces of Armisfacing each other for a temporary cessation of hostili- tices. ties for some purpose or another. They are in no wise to be compared with peace, and ought not to be called a temporary peace, because the condition of war remains between the belligerents themselves, and between the belligerents and neutrals on all points beyond the mere cessation of hostilities. In spite of such cessation the right of visit and search over neutral merchantmen remains, therefore, intact, as does likewise the right to capture neutral vessels attempting to break a blockade, and the right to seize contraband of war. However, although all armistices are essentially alike in so far as they consist in cessation of hostilities, three different kinds must be distinguished—namely, (1) suspensions of arms, (2) general armistices, and (3) partial armistices. It must be 1 This distinction, although it is, as will be seen from the following sections, absolutely necessary, is not made by several publicists. Holland, War, No. 87, says even: Suspensions of Arms. General Armistices. emphasised that the Hague Regulations deal with armistices in their articles 36 to 41 on the whole very fragmentarily, so that the gaps need filling up from the old customary rules. § 232. Suspensions of arms, in contradistinction to armistices in the narrower sense of the term, are such cessations of hostilities as are agreed upon between large or small military or naval forces for a very short time and regarding momentary and local military purposes only. Such purposes may becollection of the wounded; burial of the dead; negotiation regarding surrender or evacuation of a defended place, or regarding an armistice in the narrower sense of the term; but may also be the creation of a possibility for a commander to ask for and receive instructions from a superior authority,1 and the like. Suspensions of arms have nothing to do with political purposes, or with the war generally, since they are of momentary and local importance only. They exclusively concern those forces and that spot which are the object of the suspension of arms. The Hague Regulations do not specially mention suspensions of arms at all, since article 37 speaks of local armistices only, apparently comprising suspensions of arms among local armistices. § 233. A general armistice is such a cessation of hostilities as, in contradistinction to suspensions of arms with their momentary and local military purposes, is agreed upon between belligerents for the whole of their forces and the whole region of war. General armistices are always conventions of vital 'armistice,' and a 'suspension of arms. See also below, § 233. An instructive example of suspensions of arms for such purposes is furnished by the Convention between the German forces besieging Belfort and the French forces holding this fortress during the Franco-German War, signed on February 13, 1871; see Martens, N.R.G., XIX. p. 646. |