Rules of Land Warfare

7. The parlementaire will be treated with all the honors due to his rank and station and furnished an escort or guard in case of necessity.

8. A parlementaire can not of strict right claim to pass the outposts, nor can be demand to be conducted into the presence of the commanding officer. His message, if written, may be transmitted to the commanding officer; if verbal, he may be required to reduce it to writing or deliver it orally to such person as may be designated to receive it. If he is sent to the rear for any reason whatever, he should be blindfolded and sent by a circuitous route.

9. In cases where resort is had to a decision from higher authority, the parlementaire must wait until same is returned. 10. The parlementaire will be permitted to retire and return with the same formalities and precautions as upon arrival.1

1 Vide par. 236 and note 1, par. 237. Also F. S. R., 1914, par. 83. See Land Warfare, Opp., pp. 52–55. Kriegsbrauch, pp. 25 et seq.

247. Detention of parlementaire.—In addition to 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 should reveal information of the movement of troops. 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.

248. Inviolability, loss of.-H. R. XXXIV. The parlementaire loses his right 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.1

1 The original French word used is "trahisen," in The Hague rule. It was translated "treachery," probably because a parlementaire can not, strictly speaking, be guilty of treason.

249. Abuse of flag of truce.-It constitutes an abuse of the flag of truce, forbidden as an improper use under Hague Rule XXIII (f), for an enemy not to halt and cease firing while the parlementaire sent by him is advancing and being received by the other party. Likewise, if the flag of truce is made use of for the purpose of inducing the enemy to believe that a parlementaire is going to be sent when no such intention exists. It is also an abuse of a flag of truce to carry out operations under the protection granted by the enemy to the pretended flag of truce. An abuse of a flag of truce may authorize a resort to reprisals.1

1 See infra as to reprisals, pars. 379 et seq.. Land Warfare, Opp., par. 255. "Every abuse of the flag of truce entitles the injured party to reprisals."

CHAPTER VII, SECTION II.

CAPITULATIONS.

250. Military honor in.-H. R. Art. XXXV. Capitulations agreed upon between the contracting powers must take into account the rules of military honor.

Once settled, they must be scrupulously observed by both parties.1

1 The foregoing is the only article on the subject of capitulations in The Hague Rules. It will be observed that it refers solely to the question of military honor in such conventions. The rules concerning such capitulations must therefore be sought for outside of The Hague Conventions. For forms of capitulation see Appendices A, B, C, D, this chapter.

251. Definition.—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.

Capitulations are essentially military agreements, which involve the cessation of further resistance by the force of the enemy which capitulates. The surrender of a territory is frequently spoken of as an evacuation.

252. Powers of commanders. The commander of a fort or place and the commander in chief of an army are presumed to be duly authorized to enter into capitulations, being responsible to their respective governments for any excess of power in stipulations entered into by them.1 His powers do not extend beyond what is necessary for the exercise of his command. does not possess power to treat for a permanent cession of the place under his command, for the surrender of a territory, for the cessation of hostilities in a district beyond his command,3 or generally to make or agree to terms of a political nature or such as will take effect after the termination of hostilities.*

1 Marshall Blanco and the Spanish Government both disputed the right of Gen. Toral to capitulate at Santiago in 1898, But the Spanish Government was forced to recognize the validity of the capitulation, for a governor of a fortress may capitulate under his personal responsibility, without any authorization from his Government." War Rights on Land, Spaight, p, 249.

For abuse of powers such as surrendering upon too lenient terms or when he should not do so he is subject to trial under the laws or articles of war of his own country. Vide A. W., art. 42.

2 Vide Hague Convention, 1907, Actes, p. 25. "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 forts or to all the forts of a fortress.' Land Warfare, Opp., par. 306.

The surrender of Gen. Lee did not include the other Confederate Armies, although subsequent surrenders were made in accordance with its terms.

3 The capitulation of Verdun Nov. 8, 1870, stipulated that the surrender was made on the express condition of the retrocession of the fortress and town to France on the conclusion of peace. This exceeded the powers of the contracting commanders and created no obligation for their governments. Land Warfare, p. 67, par. 304 and notes.

In reply to a letter from Gen. Lee to Gen. Grant, 1865, proposing to "submit the subjects of controversy between the belligerents to a military convention," President Lincoln, to whom the letter had been referred by Gen. Grant, replied:

"The President directs me to say to you that he wishes you to have no conference with Gen. Lee, unless it be for the capitulation of Lee's army, or on solely minor or purely military matters. He instructs me to say that you are not to decide, discuss, or confer upon any political question. Such questions the President holds in his own hands and will submit them to no military conferences or conventions. Meantime you are to press to the utmost your military advantage." Draper, Am. Civil War, Vol. III, p. 561, cited by Spaight, p. 250.

253. Forms of capitulations.-There is no specified form for capitulations. They may be concluded either orally or in writing, but in order to avoid disputes which may arise as to the terms thereof it is best, whenever possible, that they be reduced to writing. The convention should contain in precise terms every condition to be imposed; the time, manner, and execution should be laid down in the most precise and unequivocal terms. In case of an unconditional surrender following an assault the terms might be oral, but should be reduced to writing if practicable.

254. Subjects usually regulated.—In the terms of capitulation the following subjects are usually determined:

(a) The fate of the garrison, including those persons who may have assisted them:

These are usually declared to be prisoners of war, but it frequently occurs that on account of their valorous resistance they are authorized to march out from the garrison with the "honors of war."1

1 For examples see Surrender of Belfort, in 1871; Bellair's Transvaal War, 1880-81, p. 272. At Potchefstrom, in 1881, the troops were allowed the honors of war. In 1855 the garrison at Kars marched out with the honors of war, but became prisoners.

(b) The disarming of the place and of the defenders:

It frequently occurs that the officers are allowed to retain their arms, equipment, and certain specified articles of personal property.2

2 The officers are not usually allowed to take their horses, although sometimes permitted to retain private mounts.

Mr. Spaight, in his Laws of War on Land, pp. 258-259, gives a table showing the disposition of certain property at Kars (1855), Vicksburg (1863), Appomattox (1865), Sedan (1870), Strasburg (1870), Metz (1870), Belfort (1871), Bitsche (1871), Avliar (1877), Wei-haiwei (1895), Santiago (1898), Manila (1898), Verliesfontein (1900), and Port Arthur (1905), as follows: War matériel, etc., surrendered entirely in every case but two, when only partially; arms and troops, surrendered in all cases except three; officers' swords, retained in all

cases except at Wei-hai-wei; officers' private property, retained (at Sedan by paroled officers only); troops' private property, retained (at Appomattox clothing only retained); officers' horses, surrendered in 8 cases, retained in 4 cases, private owned in 1 case, and 1 horse each in 1 case; troops' horses, surrendered in 10 cases, retained in 3 cases.

The French, Russian, and other Governments require that in every case the commander of the place must not surrender until he has destroyed all flags, but this should be done before signing the capitulation.

8 Gen. Stoessel destroyed all Russian flags at Port Arthur. (Ariga, 309-310.)

(d) Provisions relative to private property of prisoners, in cluding personal belongings and valuables:

Usually prisoners retain the ownership of their effects, personal belongings and valuables. However, they can be deprived temporarily of the possession of them as a measure of safety.*

4 Gen. Grant declined to permit Confederate officers at Vicksburg to take their servants (slaves) as private property. (Draper, Vol III, p. 52.) The Japanese permitted the men to take with them their tents and necessary personal belongings, the officers to take baggage within the limits of weights fixed for corresponding ranks in the Japanese Army, though reasonable excesses were not objected to. (Ariga, p. 312.) The Japanese declined to assume any responsibility for the private property of Russian officers. (Ariga, p. 325.) Vide ante as to prisoners, pars. 52-55.

The provisions relative to the withdrawal of the. defenders and the entering into possession by the besiegers are fixed in advance with absolute precision, according to the circumstances of each case.

Commissions are named for the delivery and taking possession, respectively."

5 The details for the evacuation and taking possession of Port Arthur were incorporated in an annex to the convention. For latter see Appendix D, this chapter,

(f) Provisions relative to the medical personnel, sick, and wounded.

The provision with regard to the medical personnel, sick, and wounded is contained in Art. IX of the treaty of Port Arthur, Appendix D, this chapter, and conforms to the provisions of The Hague and Geneva Conventions.

(g) Provisions for taking over the civil government and property of the place, with regard to the peaceable population.

These, together with the preparation of the lists of prisoners, repatriation of prisoners, etc., may be arranged in what is known as the appendix to the original terms of the convention." The civil and military archives may be left in the hands of the officials of the vanquished party. Land Warfare, Opp., par. 319.

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(h) Stipulations with regard to the immediate handing over to the besiegers of certain forts or places, or other similar provisions, as a pledge for the fulfillment of the capitulation.

8 This was done at Paris and likewise at Port Arthur. See treaties, Appendix D, this chapter.

255. Damage or destruction of property prohibited after capitulation. So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or ammunition in his possession during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in same.1

1" Nothing, however, prevents a commander who intends to surrender from destroying fortifications, war material, and stores, the possession of which might assist the enemy, providing he does so before signing the capitulation."

Marshal Bazaine was tried for surrendering Metz, and was sentenced to death and military degradation for treating with the enemy "without having previously done all that duty and honor required." He was charged, among other things, with failing to destroy his arms and ammunition before surrendering. Cassell's History, Vol. I, p. 296. Hozier, Franco-Prussian War, Vol. II, p. 121. Cited in Spaight, War on Land, p. 252.

256. Denunciation of capitulation.-A capitulation can be denounced and hostilities immediately resumed for failure to execute any clause which has been agreed upon, or in case it was obtained through a breach of faith.1

1 Land Warfare, Opp., p. 824. "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."

In 1898 the Spanish Government contended that the capitulation of Manila, which occurred on the 14th, was null and void, because the protocol which was signed two days before, on August 12, stipulated that the hostilities should cease. The United States claimed that by the terms of the protocol it was to take effect upon receipt of notice of same; that notice had been immediately dispatched, but was not received in Manila before the capitulation, and added further that " as to the nature of the right by which the United States holds the city, bay, and harbor of Manila, it is the opinion of this Government that it is immaterial whether the occupation is to be considered as existing by virtue of the capitulation or by virtue of the protocol, since in either case the powers of the military occupant are the same. Vide Dig. Int. Law, Moore, sec. 1160. Mr. Oppenheim says in this connection: "A capitulation which took place after a general armistice has been agreed upon, and of which the parties to the capitulation had had no knowledge, is null and void, unless the armistice stipulated cessation of hostilities from the time when notification reaches the different forces concerned, and not from the date of signature." Land Warfare, par. 325.

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