Volume Ii Part 32 (1/2)

[Footnote 445: During the Franco-German War the Germans granted these most favourable conditions to the French forces that surrendered Belfort on February 15, 1871.]

[Sidenote: Form of Capitulations.]

-- 228. No rule of International Law exists regarding the form of capitulations, which may, therefore, be concluded either orally or in writing. But they are usually concluded in writing. Negotiations for surrender, from whichever side they emanate, are usually sent under a flag of truce, but a force which is ready to surrender without special conditions can indicate their intention by hoisting a white flag as a signal that they abandon all and every resistance. The question whether the enemy must at once cease firing and accept the surrender, is to be answered 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 until he is convinced that the white flag really indicates the intention of the commander to surrender.

[Sidenote: Competence to conclude Capitulations.]

-- 229. The competence to conclude capitulations is vested in the commanders of the forces opposing 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 particularly noted that the competence of a commander to grant them is limited[446] 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 forces other than his own and upon superior officers. The capitulation in El Arish[447] on January 24, 1800, arranged between the French General Kleber and the Turkish Grand Vizier, and approved by the British Admiral, Sir Sidney Smith, presents an ill.u.s.trative example of this rule. As General Kleber, 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 conditions, was the local commander on the coast of Egypt, but was an officer inferior 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 instructing him not to agree to any capitulation which stipulated the free return of Kleber's army to France. Sir Sidney Smith did not, however, receive instructions based on these orders until 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.[448] Lord Keith, after having received the above orders on January 8, 1800, wrote at once to General Kleber, pointing out that he was not allowed to grant the return of the French army to France.[449] 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[450] 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, circ.u.mstances had entirely changed. When General Kleber had on March 17, 1800, received Lord Keith's letter of January 8, he addressed a proclamation,[451] in which Lord Keith's letter was embodied, to his troops asking them to prepare themselves for battle and actually began hostilities again on March 20. He was a.s.sa.s.sinated on June 14, and General Menou took over the command, and it was the latter who received, on June 20, 1800, information of the changed att.i.tude of the British Government regarding the capitulation of El Arish.

Hostilities having been renewed as far back as March, General Menou refused,[452] on his part, to consent to the carrying out of the capitulation, and continued hostilities.

[Footnote 446: See U.S. Naval War Code, article 51.]

[Footnote 447: Martens, _R._ VII. p. 1.]

[Footnote 448: Martens, _R._ VII. pp. 8 and 9.]

[Footnote 449: Martens, _R._ VII. p. 10.]

[Footnote 450: Martens, _R._ VII. p. 11.]

[Footnote 451: Martens, _R._ VII. p. 15.]

[Footnote 452: Martens, _R._ VII. p. 16.]

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 him, but which 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 the promises of Sir Sidney Smith, 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.

[Sidenote: Violation of Capitulations.]

-- 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 const.i.tute an international delinquency if ordered by the belligerent Government concerned, and a war crime if committed without such order. Such violation may be met with reprisals or punishment of the offenders as war criminals.

VI

ARMISTICES

Grotius, III. c. 21, ---- 1-13, c. 22, -- 8--Pufendorf, VIII. c. 7, ---- 3-12--Vattel, III. ---- 233-260--Hall, -- 192--Lawrence, -- 216--Westlake, p. 82--Phillimore, III. ---- 116-121--Halleck, II.

pp. 311-319--Moore, VII. -- 1162--Taylor, ---- 513 and 516--Wheaton, ---- 400-404--Bluntschli, ---- 688-699--Heffter, -- 142--Lueder in Holtzendorff, IV. pp. 531-544--Ullmann, -- 186--Bonfils, Nos.

1248-1258--Despagnet, Nos. 563-566--Pradier-Fodere, VII. Nos.

2889-2918--Rivier, II. pp. 362-368--Nys, III. pp. 518-520--Calvo, IV. ---- 2433-2449--Fiore, III. Nos. 1484-1494, and Code, Nos.

1750-1763--Martens, II. -- 127--Longuet, ---- 145-149--Merignhac, pp.

230-239--Pillet, pp. 364-370--Zorn. pp. 201-206--Bordwell, p.

291--Meurer, II. ---- 43-44--Spaight, pp. 232-248--_Kriegsbrauch_, pp. 41-44--Holland, _War_, Nos. 93-99--_Land Warfare_, ---- 256-300.

[Sidenote: Character and Kinds of Armistices.]

-- 231. Armistices or truces, in the wider sense of the term, are all agreements between belligerent forces for a temporary cessation of hostilities. They are in no wise to be compared with peace, and ought not to be called 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 therefore remains 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 of cessation of hostilities, three different kinds must be distinguished--namely, (1) suspensions of arms, (2) general armistices, and (3) partial armistices.[453] It must be emphasised that the Hague Regulations deal with armistices in articles 36 to 41 very incompletely, so that the gaps need filling up from old customary rules.