Chapter 12_Relations Between Belligerents

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XII Non-Hostile Relations Between Belligerents

Chapter Contents

12.1 Introduction 12.2 Principle of Good Faith in Non-Hostile Relations 12.3 Methods for Communication Between Belligerents 12.4 The White Flag of Truce to Initiate Negotiations 12.5 Rules for Parlementaires 12.6 Military Passports, Safe-Conducts, and Safeguards 12.7 Cartels 12.8 Capitulations Negotiated Instruments of Surrender 12.9 Capitulations Subjects Usually Addressed 12.10 Capitulations Violations and Denunciation 12.11 Armistices and Other Cease-Fire Agreements 12.12 Armistices Subjects Usually Addressed 12.13 Armistices Violations and Denunciation 12.14 U.N. Security Council Cease-Fires

12.1 INTRODUCTION

This Chapter addresses the legal principles for non-hostile relations between belligerents and the basic mechanisms for implementing them.

More specifically, this Chapter addresses the rules for the protection of certain personnel engaged in non-hostile relations, such as parlementaires, and persons protected by military passports, safe-conducts, or safeguards. In addition, this Chapter addresses certain agreements between opposing belligerents, such as cartels, capitulations, and armistices.

Traditional Rule of Non-Intercourse During War. The traditional rule during 12.1.1international armed conflict is that, even without any special proclamation, all intercourse between the territories occupied by belligerent forces, including communication, transportation, and commerce, would cease.1

The traditional rule of non-intercourse reflects a belligerents authority under the law of war to limit and regulate intercourse between persons and territory controlled by or belonging to that belligerent and persons and territory controlled by or belonging to the enemy.2 For example,

1 See 1956 FM 27-10 (Change No. 1 1976) 449 (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.); LIEBER CODE art. 86 (All intercourse between the territories occupied by belligerent armies, whether by traffic, by letter, by travel, or in any other way, ceases. This is the general rule, to be observed without special proclamation.). 2 See Hamilton v. Dillin, 88 U.S. 73, 97 (1874) (As before stated, the power of the government to impose such conditions upon commercial intercourse with an enemy in time of war as it sees fit is undoubted. It is a power which every other government in the world claims and exercises, and which belongs to the government of the United States as incident to the power to declare war and to carry it on to a successful termination. We regard the

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States may authorize their military commanders to limit travel and trade within their areas of operations for security purposes. During armed conflict, States have exercised their authority to limit intercourse with the enemy in order to avoid supporting the enemys war effort and in order to speak with one voice in communications with the enemy State.

In particular, the traditional rule of non-intercourse notifies a States nationals and other persons subject to its jurisdiction that they may be liable to punishment by that State under its domestic law and war powers if they communicate with or support the States enemies in war without proper authorization.3

Exceptions to the general rule of non-intercourse (such as communication with enemy forces or permission to trade or travel between territories that are controlled by forces hostile to one another) have been granted on behalf of individuals only with the approval of the Government or the highest military authority.4

12.1.1.1 Limitations on the Belligerents Authority to Regulate Intercourse. A belligerents authority to regulate intercourse between territory it controls and territory controlled by the enemy is subject to certain limitations.

Insofar as restrictions on travel and trade imposed by a belligerent affect neutral rights, such restrictions may be limited by the law of neutrality. An Occupying Powers authority to control travel and trade during belligerent occupation is addressed by the law of occupation.5

regulations in question as nothing more than the exercise of this power. It does not belong to the same category as the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the government, just as much so as the power to levy military contributions, or to perform any other belligerent act.). 3 For example, 10 U.S.C. 904 (Any person who-- (1) aids, or attempts to aid, the enemy with arms, ammunition, supplies, money, or other things; or (2) without proper authority, knowingly harbors or protects or gives intelligence to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall suffer death or such other punishment as a court-martial or military commission may direct. This section does not apply to a military commission established under chapter 47A of this title.); Amos T. Akerman, Attorney General, Unlawful Traffic with Indians, Jul. 19, 1871, 13 OPINIONS OF THE ATTORNEY GENERAL 470, 471-72 (1873) (But I observe that General Sherman, in his letter, refers to the parties apprehended by the military as having been captured while engaged in unlawful traffic with hostile Indians; and the papers submitted show that a portion of the property employed in this trade consisted of ammunition. Now, if the Indians to whom the captured persons were thus supplying ammunition, &c., were in open and notorious hostility to the United States at the time, and, therefore, properly came within the description of public enemies, the parties apprehended would seem to be amenable to trial and punishment by court-martial under the 56th article of war, which applies to persons who are not, as well as to persons who are, in the military service.); LIEBER CODE art. 86 (Contraventions of this rule [of non-intercourse] are highly punishable.). 4 1956 FM 27-10 (Change No. 1 1976) 450 (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.); LIEBER CODE art. 86 (Exceptions to this rule, whether by safe-conduct, or permission to trade on a small or large scale, or by exchanging mails, or by travel from one territory into the other, can take place only according to agreement approved by the government, or by the highest military authority.). 5 Refer to 11.12 (Movement of Persons in Occupied Territory); 11.23.4 (Regulation of External Trade).

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Under the GC, however, protected persons in a belligerents home country, or in territory occupied by a belligerent, are entitled to leave unless such departure is contrary to the interests of the State.6

Necessity for Non-Hostile Relations. Despite the general rule of non-intercourse 12.1.2during war, the conduct of war and the restoration of peace require certain non-hostile relations between belligerents.7

12.1.2.1 Non-Hostile Relations to Facilitate Humanitarian Activities During Armed Conflict. Non-hostile relations, including local communication between belligerent forces, may be necessary to facilitate the conclusion and implementation of special agreements contemplated by the 1949 Geneva Conventions. These include:

special agreements to facilitate the protection of the wounded, sick, shipwrecked, and medical personnel,8 such as

o armistices or local arrangements to permit the removal, exchange, or transport of the wounded and sick;9

special agreements to facilitate the protection of POWs,10 such as

o agreements to effect the direct repatriation or accommodation in neutral countries of certain seriously wounded and sick POWs during hostilities;11 and

special agreements to facilitate the protection of civilians,12 such as

o agreements to establish areas where civilians or the wounded and sick are protected.13

Relatedly, non-hostile relations, including local communication between belligerent forces, may also be necessary:

to obtain the necessary consent for the appointment of Protecting Powers;14

6 Refer to 10.8.2 (Departures of Protected Persons From a Belligerents Home Territory); 11.12.2 (Departure of Protected Persons Who Are Not Nationals of the State Whose Territory Is Occupied). 7 1956 FM 27-10 (Change No. 1 1976) 451 (The conduct of war and the restoration of peace require certain nonhostile relations between belligerents.). 8 Refer to 7.1.1.2 (Special Agreements Under the GWS and GWS-Sea). 9 Refer to 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the Wounded). 10 Refer to 9.1.2.2 (Special Agreements Under the GPW). 11 Refer to 9.36 (Direct Repatriation and Accommodation in Neutral Countries During Hostilities). 12 Refer to 10.1.1.2 (Special Agreements Under the GC). 13 Refer to 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

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to establish safe-conduct protections for certain persons or property under the 1949 Geneva Conventions;15 and

to conclude special agreements applicable to a non-international armed conflict to bring into effect treaty provisions that would normally only apply during international armed conflict.16

12.1.2.2 Non-Hostile Relations to Facilitate the Restoration of Peace. Non-hostile relations, including local communication between belligerent forces, may also be important in facilitating the restoration of peace, including by facilitating:

ceasefires or local armistices that implement a general armistice;

armistices that are a prelude to a peace treaty;17

the permanent cessation of hostilities through a peace treaty;

agreements on the repatriation of POWs or retained personnel after the cessation of hostilities;18

measures to protect civilians from the effects of minefields, mined areas, mines, booby-traps, and other devices, such as information sharing with another party or parties to the conflict;19 and

the provision of certain assistance to facilitate the marking and clearance, removal, or destruction of explosive remnants of war, in cases where a user of explosive ordnance that has become explosive remnants of war does not exercise control of the territory.20

12.2 PRINCIPLE OF GOOD FAITH IN NON-HOSTILE RELATIONS

Absolute good faith with the enemy must be observed as a rule of conduct, including in non-hostile relations between opposing belligerents.21 In particular, in the context of non-hostile relations, the principle of good faith requires that:

14 Refer to 18.15.2 (Appointment of a Protecting Power). 15 Refer to 12.6.3.3 (Safe-Conducts Contemplated by the 1949 Geneva Conventions). 16 Refer to 17.3 (Special Agreements Between Parties to the Conflict). 17 Refer to 12.11.1.2 (Armistice as a Suspension of Hostilities and Not a Peace Treaty). 18 Refer to 9.37.1 (Agreements on POW Release and Repatriation). 19 Refer to 6.12.12 (Obligations Arising After the Cessation of Active Hostilities). 20 Refer to 6.20.8 (Providing Assistance to Facilitate the Removal of Explosive Remnants of War From a Partys Military Operations in Areas Outside Its Control). 21 Refer to 5.21 (Overview of Good Faith, Perfidy, and Ruses).

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compacts between enemies, such as truces and capitulations, shall be faithfully adhered to;22

no advantage not intended to be given by the adversary shall be taken;23 and

the means of conducting non-hostile relations (such as flags of truce) must not be misused.24

On the other hand, the principle of good faith does not prohibit belligerents from:

continuing their military operations while negotiations are ongoing;25 or

declining to respond to offers to negotiate, refusing offers to negotiate, or refusing specific offers from the adversary for reasons of military expediency.26

12.3 METHODS FOR COMMUNICATION BETWEEN BELLIGERENTS

Belligerents may communicate with one another through a variety of methods, including:

directly by telecommunications;27

22 Daniel Webster, Secretary of State, Letter to Waddy Thompson, Esq., Envoy Extraordinary and Minister Plenipotentiary of the United States to the Mexican Republic, Apr. 15, 1842, reprinted in THE DIPLOMATIC AND OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 321, 331 (1848) (If there is one rule of the law of war more clear and peremptory than another, it is that compacts between enemies, such as truces and capitulations, shall be faithfully adhered to; and their non-observance is denounced as being manifestly at variance with the true interest and duty; not only of the immediate parties, but of all mankind.). 23 1956 FM 27-10 (Change No. 1 1976) 453 (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.). 24 2004 UK MANUAL 10.2 (Whenever there are non-hostile relations between parties to an armed conflict, those relations must be conducted with the utmost good faith and any agreement reached scrupulously observed. In particular, there should be no abuse of a flag of truce or emblems of identification in dealings between belligerents.). 25 For example, Donald W. Boose, Jr., Fighting While Talking: The Korean War Truce Talks, OAH MAGAZINE OF HISTORY, 25, 27 (Spring 2000) (The truce talks resumed on 26 April [1953], and the two sides quickly agreed on the broad outlines of a plan to deal with the POW issue through a Neutral Nations Repatriation Commission composed of the same members as the Neutral Nations Supervisory Commission, in addition to India. There were still unresolved issues, however. The U.S. leadership, losing patience with the slow pace of negotiations, now attempted to use military action to pressure the Chinese and North Koreans. In May U.S. aircraft attacked irrigation dams near Pyongyang, disrupting rail lines and roads and further straining the North Korean infrastructure. Then on 20 May Eisenhower and his advisors decided that if no progress were made, the UNC would initiate a military offensive that might include attacks on China and the use of nuclear weapons.). 26 Refer to 12.5.2 (Refusal or Reception of a Parlementaire). 27 For example, James Reston, Ridgway in Offer; Key Figure in Truce Plan Receives a Visitor U.S. Asks Command of Reds to Parley, THE NEW YORK TIMES, Jun. 30, 1951 (In accordance with Presidential instructions recommended by the National Security Council and dispatched from the Pentagon at 1:27 oclock this afternoon, Gen. Matthew B. Ridgway of the United States broadcast the following message at 6 P.M. to The Commander in Chief, Communist Forces in Korea:).

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through the traditional mechanism of a display of a flag of truce and the sending of parlementaires;28

in conferences between belligerent representatives in an agreed neutral zone;29

through international organizations, such as the United Nations;

indirectly through another State, such as a Protecting Power;30 and

indirectly through the ICRC or other impartial humanitarian organization.31

12.4 THE WHITE FLAG OF TRUCE TO INITIATE NEGOTIATIONS

In the past, the normal means of initiating negotiations between belligerents has been the display of the white flag of truce.32

Meaning of the White Flaga Desire to Communicate. As a legal matter, the 12.4.1white flag, when used by military forces, indicates a desire to communicate with the enemy. The hoisting of a white flag has no other legal meaning in the law of war.33

The hoisting of a white flag may indicate that the party hoisting it desires to open communication with a view to an armistice (e.g., to enable forces to collect the wounded) or a surrender.34 If hoisted during a military action by an individual combatant or a small party of combatants, it may signify merely that those persons or forces wish to surrender.35 Although the white flag has been used with this intent, the display of the white flag does not necessarily mean that the person or forces displaying it are prepared to surrender. Moreover, enemy forces in the immediate area might not have the same intent as the individual or forces displaying the white

28 Refer to 12.4 (The White Flag of Truce to Initiate Negotiations); 12.5 (Rules for Parlementaires). 29 Refer to 12.5.5 (Neutral Zone and Other Appropriate Measures to Facilitate Negotiations). 30 For example, Acceptance of Germanys Offer Concerning Prisoners of War, Apr. 23, 1945, 12 DEPARTMENT OF STATE BULLETIN 810 (Apr. 29, 1945) (The Department of State and the War Department announced on April 23 that the Government of the United States has accepted an offer of the German Government to leave in camps all prisoners of war as the Allies advance. The proposal of the German Government was made to the United States through the Swiss Government as protecting power.). 31 1956 FM 27-10 (Change No. 1 1976) 452 (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.). 32 1956 FM 27-10 (Change No. 1 1976) 458 (In the past, the normal means of initiating negotiations between belligerents has been the display of a white flag.). 33 1956 FM 27-10 (Change No. 1 1976) 458 (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.). 34 1956 FM 27-10 (Change No. 1 1976) 458 (It may indicate that the party hoisting it desires to open communication with a view to an armistice or a surrender.). 35 1956 FM 27-10 (Change No. 1 1976) 458 (If hoisted in action by an individual soldier or a small party, it may signify merely the surrender of that soldier or party.).

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flag, especially where the display of the white flag was not authorized by the individual or forces commander.

Rules for the Party Displaying the White Flag. Forces displaying a flag of truce 12.4.2must show clearly that they intend to engage in non-hostile relations. They bear the burden of communicating their intent to the adversary.

To indicate that the hoisting of the white flag 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.36

The commander authorizing the hoisting of the flag should also promptly send a parlementaire to communicate the commanders intent.37

12.4.2.1 Prohibition on Improper Use of the Flag of Truce. It is especially forbidden to make improper use of a flag of truce.38 It would be improper to use a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention.39

It is an abuse of the flag of truce if the force that sends a parlementaire does not halt and cease fire while the parlementaire is approaching, or is being received by, the other party.40

Improper use of a flag of truce also includes its use while engaging in attacks or in order to shield, favor, or protect ones own military operations, or otherwise to impede enemy military operations.41 For example, flags of truce may not be used surreptitiously to obtain military

36 1956 FM 27-10 (Change No. 1 1976) 458 (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.); 1958 UK MANUAL 395 (It is essential, however, that the troops who hoist the white flag to indicate a wish to enter into communication with the enemy, should halt and cease firing, for otherwise the enemy cannot be certain that the hoisting of the white flag is authorised.). 37 1956 FM 27-10 (Change No. 1 1976) 458 (The commander authorizing the hoisting of the flag should also promptly send a parlementaire or parlementaires.). 38 HAGUE IV REG. art. 23(f) (it is especially forbidden [t]o make improper use of a flag of truce). Consider AP I art. 38(1)(a) (It is also prohibited to misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property.). 39 Cf. 10 U.S.C. 950t (18) (Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.). 40 1958 UK MANUAL 415 (The improper use of a flag of truce is forbidden. It is an abuse of the flag of truce if the force which sends a parlementaire does not halt and cease fire whilst the parlementaire is approaching, or is being received by, the other party.); 1956 FM 27-10 (Change No. 1 1976) 467 (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;). 41 Refer to 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military Operations).

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information, or with the purpose of obtaining time to effect a withdrawal, secure reinforcements, resupply, or conduct other operations. 42

Rules for the Party to Whom the White Flag Is Displayed. A party is not required 12.4.3to cease firing or other military operations when a white flag is raised by the other side.43

It is essential to determine with reasonable certainty that the flag is shown by actual authority of the enemy commander before basing important action upon that assumption.44 For example, forces should not assume that all enemy forces in the locality intend to surrender and expose themselves to hostile fire based on the enemys display of a white flag.45

Fire must not be directed intentionally on the person carrying the white flag or on persons near him or her unless there is a clear manifestation of hostile intent by those persons.46

12.5 RULES FOR PARLEMENTAIRES

After the display of the white flag, a parlementaire would be sent to conduct negotiations, traveling under the display and protection of the white flag of truce.

The Parlementaire and Party. Parlementaires ordinarily are agents employed by 12.5.1commanders 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.47

42 LIEBER CODE art. 114 (If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy. So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as a spy.); 1958 UK MANUAL 416 (It is also an abuse of the flag of truce to use a white flag for the purpose of making the enemy believe that a parlementaire is about to be sent when there is no such intention, and to carry out operations under the protection granted by the enemy to the pretended flag of truce.). 43 1956 FM 27-10 (Change No. 1 1976) 458 (The enemy is not required to cease firing when a white flag is raised.); LIEBER CODE art. 112 (Firing is not required to cease on the appearance of a flag of truce in battle.). 44 1956 FM 27-10 (Change No. 1 1976) 458 (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.). 45 For example, 2004 UK MANUAL 10.5.2 footnote 10 (A British officer was killed at Goose Green during the Falklands conflict 1982 when moving towards a white flag. The shots were not fired by those displaying the white flag, but by others in the vicinity.); SPAIGHT, WAR RIGHTS ON LAND 92-93 (At Spion-Kop, some of the British troops in an advanced trench on the mountain held up handkerchiefs in token of surrender, and the Boers came forward to take them prisoners; they were fired upon by the other British soldiers, and some of them and also some of the prisoners were shot. Presidents Kruger and Steyn protested against this abuse of the white flag, but the protest cannot be upheld. For the particular men who put up the signal of surrender to have fired on their captors would have been treachery, but their comrades were not bound by their action; the surrender was not authorised and the main body of the British troops on the hill were perfectly entitled to disregard it and to fire both on their own men who surrendered and on the enemy disarming them.). 46 1956 FM 27-10 (Change No. 1 1976) 461 (Fire should not be intentionally directed on parlementaires or those accompanying them.); 1958 UK MANUAL 396 (Fire must not be directed intentionally on the person carrying the white flag or on persons near him.).

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12.5.1.1 Parlementaire Notes on Terminology. The term parlementaire is derived from parley and was adopted by governments at the First Hague Peace Conference in 1899.48 These provisions were repeated in the 1907 Hague IV Regulations.

Article 32 of the Hague IV Regulations provides that a person is regarded as bearing a flag of truce who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag.49 Although the word parlementaire has been translated as a person bearing a flag of truce, the parlementaire need not physically carry the white flag.50

12.5.1.2 Authorization and Credentials of the Parlementaire. A parlementaire must be authorized by a belligerent to enter into communications with the other side.51 To demonstrate the authorization to negotiate, a parlementaire must be duly authorized in a written instrument signed by the commander of his or her forces.52

12.5.1.3 Members of a Parlementaire Party. A parlementaire may come alone, or he or she may request to have others, such as an interpreter, accompany him or her. In the past, flag-bearers or drummers accompanied parlementaires to reduce the risk that the parlementaires would be inadvertently attacked.53 In modern warfare, members of a parlementaires party may

47 1956 FM 27-10 (Change No. 1 1976) 459 (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.). 48 1958 UK MANUAL 389 (The usual agents in the non-hostile intercourse of belligerent armies are known as parlementaires.); 1958 UK MANUAL 389 note 1 (It has been thought desirable to adopt this term, for which the ancient verb to parley would seem good authority, from the Hague Rules; it is current in other armies, in addition to the expression flag of truce. The use of the latter term by British manuals in the past to mean sometimes both the envoy and the emblem, sometimes only the envoy, and at other times the envoy and his attendants, has given rise to some confusion. The use of the expression bearer of a flag of truce to signify the principal agent is also misleading, as he is seldom the actual bearer of the flag.). 49 HAGUE IV REG. art. 32. 50 1914 RULES OF LAND WARFARE 235 note 1 (The adoption of the word parlementaire to designate and distinguish the agent or envoy seems absolutely essential in order to avoid confusion and because all other nations, including Great Britain, utilize the word. In the past this word has been translated at times to mean the agent or envoy only, at other times the agent and emblem, or both. To call the parlementaire the bearer of a flag of truce is not in reality correct, because he seldom, if ever, actually carries it.). 51 HAGUE IV REG. art. 32 (A person is regarded as bearing a flag of truce who has been authorized by one of the belligerents to enter into communication with the other, and who advances bearing a white flag.). 52 1956 FM 27-10 (Change No. 1 1976) 462 (Parlementaires must be duly authorized in a written instrument signed by the commander of the forces.). 53 HAGUE IV REG. art. 32 (A person is regarded as bearing a flag of truce 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 interpreter who may accompany him.).

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include, for example, a driver and communications personnel, and they would take similar measures to make their status and purpose clear to the other side.54

Refusal or Reception of a Parlementaire. The commander to whom a flag of truce 12.5.2is sent is not in all cases obliged to receive it.55 A commander may decline to receive a parlementaire for reasons of military necessity, such as if the reception of the parlementaire would interfere with the commanders operations.56 However, a belligerent may not declare beforehand, even for a specified period except in case of reprisal for abuses of the flag of truce that it will not receive parlementaires.57

A commander may declare the formalities and conditions upon which he or she will receive a parlementaire and fix the hour and place at which the parlementaire must appear.58 The receiving commander may set the details of the meeting, such as the time, place, number of persons accompanying the parlementaire, authorized method of transport (e.g., foot or vehicle), and the frequency of meetings if more than one will take place. For example, the receiving commander may limit the size of the parlementaires party and need not allow an unnecessary repetition of parlementaire visits.59

Although commanders may refuse to receive parlementaires and other enemy envoys seeking to negotiate, commanders may not refuse the unconditional surrender of the adversary or declare that they will refuse unconditional surrender.60

Duties and Liabilities of the Parlementaire. Persons who display a white flag 12.5.3during combat accept the risk that they might be inadvertently wounded or killed while attempting to communicate with opposing forces.61 Parlementaires bear the burden of 54 See also 2004 UK MANUAL 10.4 footnote 5 (Although the reference here is to trumpeter, bugler or drummer, the flag bearer and interpreter who may accompany him, in modern warfare, the party is more likely to consist of a driver and radio operator, together with an interpreter. The interpreter will not necessarily be a member of the armed forces and may be a civilian. The white flag will most likely be attached to the vehicle conveying the party.). 55 HAGUE IV REG. art. 33 (The commander to whom a flag of truce is sent is not in all cases obliged to receive it.). See also LIEBER CODE art. 111 (The bearer of a flag of truce cannot insist upon being admitted. He must always be admitted with great caution. Unnecessary frequency is carefully to be avoided.). 56 1958 UK MANUAL 398 (The commander to whom a parlementaire is sent is not obliged to receive him in every case. There may be a movement in progress the success of which depends on secrecy, or owing to the state of the defences, it may be considered undesirable to allow an envoy to approach a besieged locality.). 57 1956 FM 27-10 (Change No. 1 1976) 464 (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.). 58 1956 FM 27-10 (Change No. 1 1976) 464 (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.). 59 See, e.g., 1956 FM 27-10 (Change No. 1 1976) 464 (An unnecessary repetition of visits need not be allowed.); LIEBER CODE art. 111 (Unnecessary frequency is carefully to be avoided.). 60 Refer to 5.5.7 (Prohibition Against Declaring That No Quarter Be Given); 5.10.3 (Persons Who Have Surrendered). 61 1956 FM 27-10 (Change No. 1 1976) 461 (If, however, the parlementaires or those near them present themselves during an engagement and are killed or wounded, it furnishes no ground for complaint.); LIEBER CODE

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communicating their status to the enemy.62 They should take appropriate measures to help clarify their status to enemy forces. For example, the parlementaires party should move slowly and deliberately so that it is not inadvertently attacked.63

While within the lines of the enemy, the parlementaire must obey all instructions given to him or her. The parlementaire may be required to deliver his or her message to a subordinate of the commander.64

Rights of Inviolability of the Parlementaire. A parlementaire and members of the 12.5.4parlementaires party (e.g., an interpreter) have a right to inviolability.65 For example, it would be a serious violation of good faith to attack deliberately a parlementaires party that has been received and acknowledged.66

12.5.4.1 Security Measures Are Consistent With Inviolability. The receiving commander, however, may take all the necessary steps to prevent the envoy from taking advantage of his or her mission to obtain information.67 For example, the envoy and the envoys interpreter may be blindfolded or hooded for security purposes.68

12.5.4.2 Loss of Rights of Inviolability of Parlementaire. A parlementaire loses his or her rights of inviolability if it is proved in a clear and uncontestable manner that he or she has taken advantage of his or her privileged position to provoke or commit an act of treachery.69

art. 113 (If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes no ground of complaint whatever.). Refer to 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or On Military Objectives). 62 See 1956 FM 27-10 (Change No. 1 1976) 461 (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.); 1958 UK MANUAL 396 (It is for the parlementaire to wait until there is a propitious moment, or to make a detour to avoid a dangerous zone.). 63 See 1958 UK MANUAL 402 note 1 (Unfortunate incidents may occur if the parlementaire arrives at or leaves the enemy lines at speed as he may draw fire before he is recognised.). 64 1956 FM 27-10 (Change No. 1 1976) 464 (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.). 65 HAGUE IV REG. art. 32 (A person is regarded as bearing a flag of truce 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 interpreter who may accompany him.). 66 George H. Williams, Attorney General, The Modoc Indian Prisoners, Jun. 7, 1873, 14 OPINIONS OF THE ATTORNEY GENERAL 249, 250 (1875) (According to the laws of war there is nothing more sacred than a flag of truce dispatched in good faith, and there can be no greater act of perfidy and treachery than the assassination of its bearers after they have been acknowledged and received by those to whom they are sent.). 67 HAGUE IV REG. art. 33 ([The commander to whom a flag of truce is sent] may take all the necessary steps to prevent the envoy taking advantage of his mission to obtain information.). 68 SPAIGHT, WAR RIGHTS ON LAND 217-18 ([I]t is no indignity for a parlementaire, however high his rank, to have his eyes bandaged.). 69 HAGUE IV REG. art. 34 (The envoy 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.).

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Such acts of treachery include sabotage or the secret gathering of information about the adversary while under the adversarys protection.70

A parlementaire does not commit an act of treachery if he or she reports what he or she observed in plain sight during his or her mission.71

12.5.4.3 Detention of Parlementaire. In case of abuse of a flag of truce, a commander to whom a flag of truce is sent has the right to detain the envoy temporarily.72

In addition to the right of detention for abuse of his or her position, a parlementaire may be detained for other imperative security reasons. For example, a parlementaire admitted during an engagement may be detained pending the conclusion of the immediate fighting.73 In addition, a parlementaire may be detained in case he or she has seen anything that may be detrimental to the enemy, or otherwise obtained such knowledge, or if the envoys departure would reveal information on the movement of forces.74

A parlementaire should be detained only so long as circumstances imperatively require, and information regarding the parlementaires detention, as well as any other action against the parlementaire or against any member of the parlementaires party, should be sent to his or her commander.75

Neutral Zone and Other Appropriate Measures to Facilitate Negotiations. If it is 12.5.5anticipated that negotiations between belligerents may be prolonged, a neutralized area may by

70 1958 UK MANUAL 410 note 1 (Examples of a parlementaire abusing his position are the making of sketch maps or taking photographs of defense positions and the secret gathering of information.). 71 1958 UK MANUAL 408 (A parlementaire is not, however, forbidden to observe, and afterwards report, what his enemy does not hide.); SPAIGHT, WAR RIGHTS ON LAND 219 (It is for the commander who receives the flag of truce to ensure that the bearer gains no information, whether by sight or speech, and if he fails to take the requisite precautions, it is palpably unjust to treat the envoys offense, for which his (the commanders) contributory negligence is partly to blame, as the very grave offence of spying.). 72 HAGUE IV REG. art. 33 (The commander to whom a flag of truce is sent is not in all cases obliged to receive it. He may take all the necessary steps to prevent the envoy taking advantage of his mission to obtain information. In case of abuse, he has the right to detain the envoy temporarily.). 73 LIEBER CODE art. 112 (If the bearer of a flag of truce offer himself during an engagement, he can be admitted as a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the engagement.). 74 1956 FM 27-10 (Change No. 1 1976) 465 (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.); 1958 UK MANUAL 412 (According to the Hague Rules a commander has the right to detain a parlementaire temporarily if the latter abuses his position. In addition, a commander has, by a customary rule of international law, the right to retain a parlementaire so long as circumstances require, if the latter has seen anything, knowledge of which might have adverse consequences for the receiving forces, or if his departure would coincide with movements of forces whose destination or employment he might guess. See Hague Rules 33.). 75 1956 FM 27-10 (Change No. 1 1976) 465 (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.).

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agreement of the parties be set aside for the site of the negotiations.76 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.77 The area designated as neutral on maps interchanged by representatives of the belligerents may be marked with searchlights, balloons, and other devices to ensure that it will not be attacked.78

Other appropriate measures may also be agreed upon to facilitate negotiations. For example, special signals that the parlementaires party should give or routes that the parlementaires party must take may be agreed upon to help identify the parlementaires party to the opposing forces.

12.6 MILITARY PASSPORTS, SAFE-CONDUCTS, AND SAFEGUARDS

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 or with a neutral State.79

Military Passports, Safe-Conducts, and Safeguards Notes on Terminology. The 12.6.1terms pass or permit may be used instead of passport. Pass has sometimes been used for a general permission to do certain things, while permit has sometimes been used like safe-conduct, to signify permission to do a particular thing.80

76 1956 FM 27-10 (Change No. 1 1976) 468 (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.). For example, Howard S. Levie, How it All Started and How it Ended: A Legal Study of the Korean War, 35 AKRON LAW REVIEW 205, 223 (2002) (Negotiations for an armistice began at Kaesong on July 10, 1951. Shortly thereafter, the negotiations were moved to Panmunjom at the insistence of the UNC because Kaesong, which had been between the two lines at the time of the negotiations of the liaison officers, had been occupied by the Communists and they presumed to dictate who could enter the area, while Panmunjom was located in a zone between territories occupied by the two sides. It was declared a neutral zone as were Kaesong (the Communist Armistice Delegation headquarters), Munsan-ni (the UNC Armistice Delegation headquarters), and the roads leading from each Delegation headquarters to Panmunjom.). 77 1956 FM 27-10 (Change No. 1 1976) 468 (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.). 78 1956 FM 27-10 (Change No. 1 1976) 468 (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.). 79 1956 FM 27-10 (Change No. 1 1976) 454 (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.); 1958 UK MANUAL 495 (Safeguards, like passports and safe-conducts, fall within the scope of international law only when posted by arrangement with the enemy.). 80 1958 UK MANUAL 490 (The expressions pass and permit have in recent years been employed in the place of the older terms passport and safe-conduct, with, as a rule, the same distinction, although pass has sometimes meant a general permission to do certain things, while permit has been confined to permission to do a particular act.).

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The terms military passport and safe-conduct have to some degree been used interchangeably, but military passport generally has been used in a broader sense than safe-conduct.81

Ultimately, however, the purpose of the document will be more important than the nomenclature in deciding the nature of the document issued.82

Military Passport. A military passport is a document issued by order of a 12.6.2commander 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.83

Unlike a passport for peacetime travel, such as a passport issued by the U.S. State Department, a military passport would be issued under a commanders authority to regulate commerce and travel within territory controlled by his or her forces.84

Safe Conduct. Documents like passports, issued by the same authority and for 12.6.3similar purposes to persons residing or traveling outside of the occupied areas who desire to enter and remain within or pass through such areas, are called safe-conducts.85 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 non-intercourse, are also called safe-conducts.86 Safe-conducts for goods in which the grantee is given a continuing right for a 81 SPAIGHT WAR RIGHTS ON LAND 230 (A safe-conduct or passport is a written authority issued by a commander to one or more individuals, allowing him or them to pass through districts occupied by his forces. The terms appear to be convertible, though some would make the passport confer a more extended liberty of movement than the safe-conduct, which they would confine to an authority to come to a specified place for a specified object.). 82 2004 UK MANUAL 10.35.1 (Arrangements are sometimes made between a military commander and an individual national or group of nationals belonging to the adverse party or to a neutral state. Such arrangements may be in the form of passports or safe conducts. Nomenclature is not significant in deciding the nature of the document issued. In fact, occasionally, the term pass or permit has been used. The decisive factor is the purpose for which the document has been issued, and not its terminology.). 83 1956 FM 27-10 (Change No. 1 1976) 455 (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.). 84 Refer to 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations); 11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily). 85 1956 FM 27-10 (Change No. 1 1976) 456 (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.). 86 1956 FM 27-10 (Change No. 1 1976) 456 (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.).

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prescribed period, or until further orders, to engage in the specified trade, are sometimes called licenses to trade.87

12.6.3.1 Safe-Conduct Pass for Ambassadors and Diplomatic Agents of Neutral Governments Accredited to the Enemy. Ambassadors and other diplomatic agents of neutral governments accredited to the opposing party to the conflict may receive a safe-conduct pass through territory under the opposing forces control, unless there are military or other security reasons to the contrary, including the safety of the personnel in question, and unless they may reach their destination conveniently by another route.88 There is no international law requirement, however, for issuing such a safe-conduct pass; such passes usually would be granted by national-level authorities and not subordinate officers.89

12.6.3.2 Licenses to Trade. Licenses to trade must, as a general rule, emanate from the supreme authority of the State.90 In an international armed conflict, a State controlling territory of the enemy may grant licenses to trade that relax its prohibitions on trading with the enemy.91

Licenses to trade issued by military authorities may be either general or special. A general license generally or partially relaxes the exercise of the rights of war in regard to trade in relation to any community or individuals liable to be affected by their operation.92 A special license is one given to individuals for a particular voyage or journey for the importation or exportation of particular goods.93

87 1956 FM 27-10 (Change No. 1 1976) 456 (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.); 1958 UK MANUAL 489 (A safe-conduct may, however, also be given for goods, and it then comprises permission for such good to be carried unmolested from or to a certain place, for instance from or into a besieged town.). 88 1956 FM 27-10 (Change No. 1 1976) 456 (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.); LIEBER CODE art. 87 (Ambassadors, and all 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.). 89 1956 FM 27-10 (Change No. 1 1976) 456 (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.); LIEBER CODE art. 87 (It implies no international affront if the safe-conduct is declined. Such passes are usually given by the supreme authority of the State, and not by subordinate officers.). 90 1914 RULES OF LAND WARFARE 281 note 1 (Licenses to trade must, as a general rule, emanate from the supreme authority of the State.). 91 Refer to 12.1.1 (Traditional Rule of Non-Intercourse During War). 92 1914 RULES OF LAND WARFARE 281 (A general license relaxes the exercise of the rights of war, generally or partially, in relation to any community or individuals liable to be affected by their operation.). 93 1914 RULES OF LAND WARFARE 281 (A special license is one given to individuals for a particular voyage or journey for the importation or exportation of particular goods.).

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12.6.3.3 Safe-Conducts Contemplated by the 1949 Geneva Conventions. Certain safe-conduct protection may be granted by special agreements contemplated in the 1949 Geneva Conventions. Such agreements include:

agreements for the removal and passage of certain personnel, such as vulnerable civilians, from besieged areas;94

agreements for the passage of consignments;95

agreements for the removal or transport of the wounded and sick;96

agreements for the passage of medical aircraft for the transport of the military or civilian wounded and sick;97

agreements for the safe passage of chartered medical transport ships;98 and

agreements for the special transport of relief shipments for POWs or civilian internees.99

Safeguard. A safeguard may refer to a detachment of forces posted for the 12.6.4protection of, or a written instrument affording protection by a belligerent to, enemy or neutral persons or property.

A safeguard falls within the law of war, however, only when granted and posted by arrangement with the enemy or a neutral. For example, guards or written orders posted by a belligerent for the protection of its own personnel or property would not be governed by the law of war.100

The effect of a safeguard is to pledge the honor of the nation that the person or property will be respected by its armed forces.101 It does not commit the government to its protection or defense against attacks by enemy armed forces or other hostile elements.

94 Refer to 5.19.2 (Removal and Passage of Certain Personnel Vulnerable Civilians, Diplomatic and Consular Personnel, the Wounded and Sick, and Medical Personnel). 95 Refer to 5.19.3 (Passage of Relief Consignments). 96 Refer to 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the Wounded). 97 Refer to 7.14 (Military Medical Aircraft); 7.19 (Civilian Medical Aircraft). 98 Refer to 7.13 (Chartered Medical Transport Ships). 99 Refer to 9.20.5 (Special Means of Transport of Shipments to POWs); 10.23.5 (Special Means of Transport of Shipments to Internees). 100 MANUAL FOR COURTS-MARTIAL IV-39 (26.c.(1)) (2012) (A safeguard is not a device adopted by a belligerent to protect its own property or nationals or to ensure order within its own forces, even if those forces are in a theater of combat operations, and the posting of guards or of off-limits signs does not establish a safeguard unless a commander takes those actions to protect enemy or neutral persons or property.). 101 1956 FM 27-10 (Change No. 1 1976) 457 (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.).

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Safeguards have been used to protect cultural property or other civilian property or personnel meriting special protection.102

12.6.4.1 Personnel Serving as a Safeguard. 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.103

Combatants serving as safeguards occupy a protected status.104 They may not be attacked, and it is customary to send them back, together with their equipment and arms, to their own armed forces when the locality is occupied by the enemy and as soon as military exigencies permit.105

12.6.4.2 Written Safeguard. The term safeguard also refers to a written order left by a commander with an enemy subject, or posted upon enemy property, for the protection of that person or property.106 It is usually directed to the succeeding commander and requests a grant of protection.107

12.6.4.3 Uniform Code of Military Justice Offense of Forcing a Safeguard. The violation of a safeguard is a serious violation of the law of war.108 The Uniform Code of Military Justice makes forcing a safeguard punishable.109 Forcing a safeguard means to perform an act or acts in violation of the protection of the safeguard.110

102 For example, SPAIGHT, WAR RIGHTS ON LAND 231 (The object of a safeguard is generally to protect museums, historic monuments or the like; occasionally to show respect for a distinguished enemy, as in the case of the safeguard which McClellan placed over Mrs. R. E. Lees residence, White House, Virginia, in 1862. When allies invaded France in 1814, the Emperor Alexander of Russia honoured himself and Poland by his graceful act in assigning a guard of honour of Polish soldiers to protect the house of Kosciusko -- then living, almost as a peasant, near Troyes -- from pillage and contribution.). 103 1956 FM 27-10 (Change No. 1 1976) 457 (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.). 104 1956 FM 27-10 (Change No. 1 1976) 457 (Soldiers on duty as safeguards occupy a protected status.). 105 1956 FM 27-10 (Change No. 1 1976) 457 (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.). 106 1956 FM 27-10 (Change No. 1 1976) 457 (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.). 107 1956 FM 27-10 (Change No. 1 1976) 457 (It is usually directed to the succeeding commander and requests the grant of protection.). 108 1956 FM 27-10 (Change No. 1 1976) 457 (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.). 109 See 10 U.S.C. 902 (Any person subject to this chapter who forces a safeguard shall suffer death or such other punishment as a court-martial may direct.). 110 MANUAL FOR COURTS-MARTIAL IV-39 (26.c.(2)) (2012) (Forcing a safeguard means to perform an act or acts in violation of the protection of the safeguard.).

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Revocation of Passports, Safe-Conducts, and Similar Documents. In general, 12.6.5passports, as well as safe-conducts, may be revoked for good reasons of military expediency by the person who issued them or that persons superior officer. Revocation must never be used as a means of detaining the holder, who is always allowed to withdraw in safety.111

In addition, if the holder commits any wrongful act, such as using the opportunity given by a passport or safe-conduct to obtain military information or if the holder exceeds its terms, the privilege may be withdrawn.112

12.7 CARTELS

In its narrower sense, a cartel is an agreement entered into by opposing belligerents for the exchange of POWs.113 In its broader sense, it is any convention concluded between belligerents for the purpose of arranging or regulating certain kinds of non-hostile intercourse that would otherwise be prohibited by reason of the existence of the armed conflict (e.g., postal communication or trade in certain goods or commodities).114

Both parties to a cartel are honor bound to observe its provisions scrupulously. A cartel is voidable by a party upon definite proof that it has been intentionally violated in an important particular by the other party.115

12.8 CAPITULATIONS NEGOTIATED INSTRUMENTS OF SURRENDER

Definition of Capitulation. A capitulation is an agreement (sometimes with certain 12.8.1conditions) entered into between commanders of belligerent forces for the surrender of a body of forces, a fortress, or other defended locality, or of a district of the theater of operations.116 For

111 1958 UK MANUAL 493 (Passports, as well as safe-conducts, may be revoked for good reasons of military expediency by the person who issued them or his superior officer. Until revoked, however, they are binding not only upon the person who granted them, but also upon his successors. The reasons for revocation need not be given, but revocation must never be used as a means of detaining the holder, who is always allowed to withdraw in safety. Such passports and safe-conducts as have been granted only for a limited time cease to be valid with the expiration of the period designated.). 112 1958 UK MANUAL 494 (If the holder commits any wrongful act, such as using the opportunity given by a passport or safe-conduct to obtain military information or if he exceeds its terms, the privilege may be withdrawn.). 113 Refer to 9.35.1 (Exchange of POWs During Hostilities Through Cartel Agreements). 114 1956 FM 27-10 (Change No. 1 1976) 469 (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.). 115 1956 FM 27-10 (Change No. 1 1976) 469 (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.). 116 1956 FM 27-10 (Change No. 1 1976) 470 (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.); 1958 UK MANUAL 462 (Capitulations are agreements entered into between the commanders of armed forces or belligerents concerning the terms of surrender of a body of troops, of a defended town or place, or of a particular district of the theatre of war. Surrenders of territory are sometimes designated as

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example, a capitulation agreement could involve the surrender of a small unit, such as a squad, platoon, company, or battalion, or the surrender of larger forces, such as a division or corps.117

The surrender of military forces also may be arranged between belligerents at national levels without the involvement of military commanders, and possibly through third parties. A capitulation agreement may be negotiated between opposing military forces in local implementation of a surrender negotiated at national levels.

12.8.1.1 Capitulation Compared to Armistice. A capitulation surrenders the capitulating unit, while an armistice suspends fighting between opposing forces.

12.8.1.2 Capitulation Compared to Unconditional Surrender. A capitulation is a surrender pursuant to an agreement. A surrender may be effected without resort to a capitulation agreement.118 For example, individuals or units may surrender themselves unconditionally to the opposite side without a specific capitulation agreement.119

On the other hand, an unconditional surrender may be effected through a capitulation instrument.120 Such an instrument would lack any conditions on the surrender, but may specify the way in which the surrender is to be implemented or may clarify for all concerned that the surrender is to be conducted on an unconditional basis.

Authority of Commanders to Conclude Capitulation Agreements. Commanders 12.8.2are generally presumed to have the authority to conclude capitulation agreements with respect to forces under their command and areas under their control.121 For example, if a commander of military forces concludes that continued fighting has become impossible and is unable to

evacuations.); SPAIGHT, WAR RIGHTS ON LAND 249 (A capitulation is a military convention which puts an end, with or without conditions, to the resistance of a body of troops shut up in a fortress or surrounded in the field.). 117 For example, Captain M. Scott Holcomb, View from the Legal Frontlines, 4 CHICAGO JOURNAL OF INTERNATIONAL LAW 561, 568 (2003) (As of this writing, at the end of April 2003, only a few capitulation agreements have been signed. All of them were entered into after combat began, instead of before. Most noteworthy, Colonel Curtis Potts, Commander of the Fourth Brigade of the Third Infantry Division, entered into a capitulation agreement with Iraqi General Mohamad Jarawi for the surrender of the Iraqi Armys Anbar sector command, which encompassed sixteen thousand soldiers.). 118 1956 FM 27-10 (Change No. 1 1976) 470 (A surrender may be effected without resort to a capitulation.). 119 1956 FM 27-10 (Change No. 1 1976) 478 (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.). 120 For example, Japan, Instrument of Surrender, Sept. 2, 1945, 59 STAT. 1733, 1734 (We hereby proclaim the unconditional surrender to the Allied Powers of the Japanese Imperial General Headquarters and of all Japanese armed forces and all armed forces under Japanese control wherever situated.); German High Command, Act of Military Surrender, May 7, 1945, 59 STAT. 1857, 1858 (1. We the undersigned, acting by authority of the German High Command, hereby surrender unconditionally to the Supreme Commander, Allied Expeditionary Force and simultaneously to the Soviet High Command all forces on land, sea, and in the air who are at this date under German control.). 121 1956 FM 27-10 (Change No. 1 1976) 472 (Subject to the limitations hereinafter indicated, the commander of troops is presumed to be duly authorized to enter into capitulations.).

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communicate with his or her superiors, under the law of war he or she may assume that he or she has authority to surrender his or her forces or position.122

However, a commanding officers powers generally do not extend beyond the forces and territory under his or her command.123 Thus, a commander may not surrender forces that are not under his or her command. Similarly, unless so authorized by his or her government, a commander lacks the authority to bind his or her government to a permanent cession of the place or places under his or her command, to surrender sovereignty over territory, or to agree to other terms of a political nature or such as will take effect after the termination of hostilities.124 However, capitulation agreements that have been concluded by political authorities may include such terms.125

A State is not bound by the terms of a capitulation agreement that it has not authorized its commanders to conclude and may repudiate such terms.126 For example, a State would not be bound to honor political conditions accepted by a capitulating commander or by a commander accepting capitulation, if those commanders lack such authority.127

12.8.2.1 Surrenders Contrary to Domestic Law or Superior Orders. The fact that a commander surrenders in violation of orders or the law of his or her own State does not impair

122 1956 FM 27-10 (Change No. 1 1976) 472 (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.). 123 1956 FM 27-10 (Change No. 1 1976) 472 (A commanding officers powers do not extend beyond the forces and territory under his command.); 1958 UK MANUAL 466 (The competence of a commander to accept conditions of capitulation is limited to the troops immediately under his command and does not necessarily extend to detached forces.). 124 1956 FM 27-10 (Change No. 1 1976) 472 (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.); Trial of Hans Albin Rauter, Judgment, XIV U.N. LAW REPORTS 89, 125 (Netherlands Special Court in S-Gravenhage (The Hague), May 4, 1948) (According to international law a capitulation treaty is a pact between commanders of belligerent forces for the surrender of certain troops or certain parts of the country, towns or fortresses, and as such must be scrupulously fulfilled; the commander who concludes such a pact cannot, however, be considered empowered to bind his government to a permanent cession of territory, to a cessation of hostilities in territories which do not come under his command or, in general, to provisions of a political nature; such provisions are binding in a capitulation treaty only if they are ratified by the governments of both belligerents.). 125 1956 FM 27-10 (Change No. 1 1976) 473 (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.). 126 1958 UK MANUAL 467 (Similarly, the competence of a commander to grant conditions of capitulation is limited to those the fulfilment of which depends entirely upon the forces under his command. If he agrees, without the instruction of his government, to conditions the granting of which is not implied in his powers, or the fulfilment of which depends upon forces other than his own, and upon superior officers, the conditions may be repudiated.). 127 WINTHROP, MILITARY LAW & PRECEDENTS 787 (A capitulation is of course subject to be disapproved and annulled by the Government of either commander. Thus the Sherman-Johnston capitulation of April, 1865, was repudiated by the Government at Washington because of its assuming to deal with political issues.).

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the validity of the surrender.128 Commanders who surrender in violation of orders or the law of their own State may be punished by their State.

Under the Code of Conduct for U.S. armed forces, a commander must never surrender the members of his or her command while they still have the means to resist.129 Under the Uniform Code of Military Justice, shameful surrenders are punishable. In addition, compelling or attempting to compel a commander to surrender or striking colors or flag to an enemy without proper authority is punishable.130

Rules of Military Honor. Capitulations agreed upon between belligerents must 12.8.3take into account the rules of military honor.131

Conditions involving unnecessary disgrace or ignominy should not be insisted upon.132 Capitulations may include the right of the capitulating forces to surrender with colors displayed or other indications of professional respect for the capitulating forces.133 For example, it may be appropriate to allow surrendering officers to keep their side arms.134

Even if the capitulation does not explicitly have such provisions, the capitulation agreement should be executed with honor and respect for the adversary. Treating the adversary honorably diminishes psychological stigma from capitulation and thereby provides an incentive for the adversary to capitulate rather than fight on without any chance of success.

Form of Capitulation Agreement or Instrument. There is no specified form for 12.8.4capitulation instruments. 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 law of war. Details of time and procedure should be prescribed in 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.135

128 1956 FM 27-10 (Change No. 1 1976) 472 (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.). 129 Refer to 9.39.1.2 (Code of Conduct Article II). 130 Refer to 9.39.1.2 (Code of Conduct Article II). 131 HAGUE IV REG. art. 35 (Capitulations agreed upon between the contracting parties must take into account the rules of military honour.). 132 WINTHROP, MILITARY LAW & PRECEDENTS 786 (Capitulation. This is an agreement for the surrender of an army, or of a fortified place, of which the terms are settled by the belligerent commanders. In the Project of the Brussels Conference it is prescribed that these conditions should not be contrary to military honor. That is to say, conditions involving unnecessary disgrace or ignominy should not be insisted upon.). 133 1958 UK MANUAL 475 (The expression with the honors of war, which is sometimes used in capitulations, is usually construed to include the right to march out with colors displayed, bayonets fixed, etc., but the details of such arrangements should be precisely stated in the articles [of capitulation].). 134 Refer to 12.9.2.2 (Disarmament of Surrendered Forces). 135 1956 FM 27-10 (Change No. 1 1976) 474 (There is no specified form for capitulations. They may be concluded either orally or in writing, but in order to avoid disputes, they should be reduced to writing. The

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General Effect of Capitulation. The general effect of concluding a capitulation 12.8.5agreement is that of an unconditional surrender. In other words, absent specific terms in the capitulation agreement to the contrary, the capitulation agreement should be understood to create the effect of an unconditional surrender by the capitulating party.136

The capitulating party must generally cease operations and maintain the military status quo at the time in which the capitulation becomes effective.137 For example, the capitulating forces must not engage in offensive operations against opposing forces.138 Similarly, although forces may destroy their own weapons and intelligence information to prevent them from falling into the hands of the enemy before they capitulate, after the capitulation is effective, the capitulating forces must abstain from all destruction and damage to their own facilities and equipment, unless expressly permitted by the capitulation agreement.139 The capturing side is free to confiscate as war booty or, at its discretion, destroy the weapons, ammunition, and military equipment of the capitulating side. 140

12.9 CAPITULATIONS SUBJECTS USUALLY ADDRESSED

In general, a capitulation agreement is understood to have the effect of an unconditional surrender under the law of war. However, specific topics may be addressed in the capitulation agreement that attach conditions to the surrender or specify the way in which the surrender is to be effected.

Scope of Surrendered Forces and Territory and Time of Surrender. The 12.9.1capitulation agreement may specify the force or territory that is surrendered and the exact time when the surrender is to take effect. If a place or area is surrendered, provisions relative to the withdrawal of the defenders from it and the entering into possession of it by the victorious forces may also be specified in the agreement.

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.). 136 Refer to 5.10.3 (Persons Who Have Surrendered). 137 SPAIGHT, WAR RIGHTS ON LAND 253-54 (The same principles which apply to the matriel of a fortress which has capitulated are applicable also in the case of the personnel. Once the capitulation is signed, the position is stereotyped and fixed; the status quo of the moment of signature must be honourably maintained. The victorious belligerent is justified in expecting that not only the matriel but the personnel of the capitulating force shall be handed over to him in accordance with the terms of the convention.). 138 Refer to 5.10.3.2 (Clear and Unconditional). 139 SPAIGHT, WAR RIGHTS ON LAND 251-52 (A commander who has brought a fortress to the point of capitulating, may make the non-destruction of property during the negotiations a condition for granting better terms, and it may suit the besiegeds interests to meet him in the matter. In the absence of such a special arrangement, the commandant has a perfect right to dispose as he chooses of his matriel up to the moment of the signing of the act of capitulation.). 140 Refer to 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)).

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A commanders competence to capitulate is limited to forces under his or her command.141 To avoid misunderstandings, capitulation should state the forces to be surrendered and to what extent detached forces and personnel are included in the surrender of the main body.142

Disposition of Surrendered Forces. The capitulation instrument may specify the 12.9.2movements and administration of the surrendered forces after the surrender.

In general, surrendering military forces and others entitled to POW status who fall into the power of the enemy during international armed conflict become POWs under the GPW. Similarly, the disposition of surrendered medical personnel and the wounded and sick belonging to the surrendered party would be addressed by the GWS and GWS-Sea. Insofar as matters are addressed by those treaties, there is little need for similar provisions in a capitulation instrument.

However, special circumstances, such as inability of the victor to guard, evacuate, and maintain large numbers of POWs 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.143

12.9.2.1 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 may be punished.144

12.9.2.2 Disarmament of Surrendered Forces. Normally provisions are included to govern the disposition of enemy arms, equipment, and other property in the hands of the force

141 Refer to 12.8.2 (Authority of Commanders to Conclude Capitulation Agreements). 142 1958 UK MANUAL 466 (To avoid misunderstandings, capitulations should invariably state to what extent detached forces and outlying defences are included in the surrender of the main body.). 143 1956 FM 27-10 (Change No. 1 1976) 475b (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).). 144 1956 FM 27-10 (Change No. 1 1976) 475j (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.). For example, Instrument of Surrender of all German armed forces in Holland, in North West Germany, including all islands, and in Denmark, May 4, 1945, 3-4, reprinted in The Scuttled U-Boats Case, Trial of Oberleutnant Gerhard Grumpelt, I U.N. LAW REPORTS 55, 57 (British Military Court Held at Hamburg, Germany, Feb. 12-13, 1946) (3. The German Command to carry out at once, and without argument or comment, all further orders that will be issued by the Allied Powers on any subject. 4. Disobedience of orders, or failure to comply with them, will be regarded as a breach of these surrender terms and will be dealt with by the Allied Powers in accordance with the accepted laws and usages of war.).

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that has surrendered. Officers have sometimes been allowed to retain their side arms.145 In addition, POWs are allowed to keep certain articles under the GPW.146

12.9.2.3 Prohibitions on Acts of Destruction by the Surrendered Forces. Although a capitulation, like an unconditional surrender, generally has the effect of prohibiting acts of destruction by surrendered forces, the capitulation may also specifically prohibit destruction by the surrendered forces of their materiel or installations, or communications, transportation facilities, and other public utilities in the area concerned.

Disposition of Detainees Held by the Surrendered Forces. The disposition of 12.9.3POWs, civilian internees, and other persons held in the custody of the surrendered forces may be addressed in a capitulation.147

Minefields and Other Defensive Measures. The provision of facilities and of 12.9.4information on such matters as minefields and other defensive measures may be addressed in a capitulation.148

Civil Administration of the Area Concerned. The civil administration of the area 12.9.5concerned, if a place or area is surrendered, may also be addressed in a capitulation.

12.10 CAPITULATIONS VIOLATIONS AND DENUNCIATION

Once capitulation agreements have been made, they must be scrupulously observed by all parties.149

Denunciation of Capitulation Agreements Based on Directed Violations. If 12.10.1violations of a capitulation agreement have been directed by the commander who capitulated or

145 For example, WINTHROP, MILITARY LAW & PRECEDENTS 787 (In the capitulation between Gens. Grant and Lee, of April, 1865, in providing for the surrender of military property, it is addedThis will not embrace the side arms of the officers, nor their private horses nor baggage.). 146 Refer to 9.7 (POW Effects and Articles of Personal Use). 147 For example, Japan, Instrument of Surrender, Sept. 2, 1945, 59 STAT. 1733, 1734 (We hereby command the Japanese Imperial Government and the Japanese Imperial General Headquarters at once to liberate all allied prisoners of war and civilian internees now under Japanese control and to provide for their protection, care, maintenance and immediate transportation to places as directed.). 148 For example, Instrument of Surrender of Italy, Sept. 29, 1943, 61 STAT. 2742, 2743-44 (10. The Italian Supreme Command will make available all information about naval, military and air devices, installations, and defences, about all transport and inter-communication systems established by Italy or her allies on Italian territory or in the approaches thereto, about minefields or other obstacles to movement by land, sea or air and such other particulars as the United Nations may require in connection with the use of Italian bases, or with the operations, security, or welfare of the United Nations Land, Sea or Air Forces. Italian forces and equipment will be made available as required by the United Nations for the removal of the above mentioned obstacles.). 149 HAGUE IV REG. art. 35 (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.).

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by higher authority, the other belligerent may denounce the capitulation and resume hostilities.150 Like action may also be taken if the capitulation was obtained through a breach of faith.151

A capitulation may not, however, be denounced because one of the parties has been induced to agree to it by a means consistent with the law of war, such as a ruse, or by that partys own incapacity, such as through mistake of fact.152

Violation of Capitulation Agreements by Individuals. Deliberate violations of 12.10.2the terms of a capitulation by individuals are punishable as a war crime.153 For example, a member of the capitulated force may be punished by his or her State or the enemy State for carrying out attacks on enemy military equipment or personnel in violation of the terms of the capitulation agreement. Similarly, destroying ones own military equipment in violation of the terms of the capitulation agreement would also be punishable.154

Unwitting violations of a capitulation agreement, however, are not punishable. For example, individuals who return from a patrol and find their unit to have surrendered and, lacking knowledge of capitulation, continue to fight, would not be committing a war crime.

12.10.2.1 Violation of Capitulation Agreements and POW Status. Violation of a capitulation agreement, like other pre-capture law of war violations, is not a basis for denying a person POW status, if that person otherwise qualifies for POW status under the GPW.155

12.10.2.2 Violation of Capitulation Agreements by POWs. Members of the armed forces who have capitulated may become POWs. Violations of the terms of a capitulation agreement by a POW may also be punishable as misconduct as a POW, either by the Detaining Power or the State to which the POW belongs when that POW has been repatriated.156

150 1956 FM 27-10 (Change No. 1 1976) 477 (If the violation is directed by the commander who capitulated or by higher authority, the other belligerent may denounce the capitulation and resume hostilities.). 151 1956 FM 27-10 (Change No. 1 1976) 477 (Like action may also be taken if the capitulation was obtained through a breach of faith.). 152 1958 UK MANUAL 484 (A capitulation may be denounced if a party to it formally refuses to execute a clause which has been agreed upon, and it may be cancelled if it was obtained by a breach of faith. It may not, however, be annulled because one of the parties has been induced to agree to it by ruse, or from motives for which there is no justification, or by his own incapacity or feebleness.). 153 1956 FM 27-10 (Change No. 1 1976) 477 (Violation of the terms of a capitulation by individuals is punishable as a war crime.); Johnson v. Eisentrager, 339 U.S. 763, 787 (1950) (Breach of the terms of an act of surrender is no novelty among war crimes.). 154 For example, The Scuttled U-Boats Case, Trial of Oberleutnant Gerhard Grumpelt, I U.N. LAW REPORTS 55-70 (British Military Court, Hamburg, Germany, Feb. 12-13, 1946) (First Lieutenant Grumpelt was convicted of having scuttled two U-boats which had been surrendered by the German Command to the