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5. SUSPENSIONS OF ARMS.

§ 1161.

Belligerent states and their armies and fleets often have occasion during the continuance of war to enter into agreements of various kinds for the general or partial suspension of hostilities. All such agreements are included under the general name of compacts and conventions. If the cessation of hostilities is only for a very short time, or at a particular place, or for a temporary purpose, such as a parley, a conference, the removal of the wounded, or the burial of the dead, it is called a suspension of arms. Such a compact may be formed between the immediate commanders of the opposing forces, and is obligatory on all persons under their respective commands. Even commanders of detachments may enter into such a compact. But it binds in such a case only the detachment itself, and can not affect the operation of other troops.

Halleck, Int. Law (3d ed., by Baker), II. 311.

"After a truce to allow of the removal of noncombatants protracted negotiations continued from July 3d until July 15th, when, under menace of immediate assault, the preliminaries of surrender were agreed upon. On the 17th General Shafter occupied the city. The capitulation embraced the entire eastern end of Cuba. The number of Spanish soldiers surrendering was 22,000, all of whom were subsequently conveyed to Spain at the charge of the United States."

President McKinley, annual message, Dec. 5, 1898, For. Rel. 1898, LXI.

6. TRUCES OR ARMISTICES.

$1162.

If the suspension of hostilities is for a more considerable length of time or for a more general purpose, it is called a truce or armistice. Such suspension is either partial or general. A partial truce is limited to particular places or to particular force, as a suspension of hostilities between a town or fortress and the forces by which it is invested, or between two hostile armies or fleets. But a general truce or armistice applies to the general operations of war, and whether it be for a longer or shorter time extends to all the forces of the belligerent states and restrains the state of war from producing its proper effects, leaving the contending parties and the questions between them in the same situation in which it found them. Such a truce has sometimes been called a temporary peace, though in such case the word peace is used only in opposition to acts of war and not in opposition to a state of war. Such a general suspension of hosH. Doc. 551-vol 7—22

tilities throughout the nation can be made only by the sovereignty of the state, either directly or by authority specially delegated.

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Halleck, Int. Law (3d ed., by Baker), II. 311–312.

See, also, as to truces, Hall, Int. Law (5th ed.), 544-549; Calvo, §§ 2434, 2436, 2446; Heffter, Bergson's ed., 330; Rivier, Principes, II. 364-365; Woolsey, § 157; Pradier-Fodéré, VII. § 2900.

135. An armistice is the cessation of active hostilities for a period agreed between belligerents. It must be agreed upon in writing, and duly ratified by the highest authorities of the contending parties.

"136. If an armistice be declared without conditions it extends no further than to require a total cessation of hostilities along the front of both belligerents.

"If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If either party violates any express condition, the armistice may be declared null and void by the other.

"137. An armistice may be general, and valid for all points and lines of the belligerents; or special-that is, referring to certain troops or certain localities only.

"An armistice may be concluded for a definite time; or for an indefinite time, during which either belligerent may resume hostilities on giving the notice agreed upon to the other.

"138. The motives which induce the one or the other belligerent to conclude an armistice, whether it be expected to be preliminary to a treaty of peace, or to prepare during the armistice for a more vigorous prosecution of the war, does in no way affect the character of the armistice itself."

"140. Commanding officers have the right to conclude armistices binding on the district over which their command extends, but such armistice is subject to the ratification of the superior authority, and ceases so soon as it is made known to the enemy that the armistice is not ratified, even if a certain time for the elapsing between giving notice of cessation and the resumption of hostilities should have been stipulated for.

"141. It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic between the inhabitants of the territories occupied by the hostile armies shall be allowed, if any.

"If nothing is stipulated the intercourse remains suspended, as during actual hostilities.

"142. An armistice is not a partial or a temporary peace; it is only the suspension of military operations to the extent agreed upon by the parties.

“143. When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on this

subject that the besieger must cease all extension, perfection, or advance of his attacking works as much so as from attacks by main force.

"But as there is a difference of opinion among martial jurists, whether the besieged have a right to repair breaches or to erect new works of defense within the place during an armistice, this point should be determined by express agreement between the parties."

145. When an armistice is clearly broken by one of the parties, the other party is released from all obligation to observe it.

“146. Prisoners taken in the act of breaking an armistice must be treated as prisoners of war, the officer alone being responsible who gives the order for such a violation of an armistice. The highest authority of the belligerent aggrieved may demand redress for the infraction of an armistice.

147. Belligerents sometimes conclude an armistice while their plenipotentiaries are met to discuss the conditions of a treaty of peace; but plenipotentiaries may meet without a preliminary armistice; in the latter case the war is carried on without any abatement."

Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
Official Records, series 3, III. 161, 162.

"ARTICLE XXXVI. An armistice suspends military operations by inutual agreement between the belligerent parties. If its duration is not fixed, the belligerent parties can resume operations at any time, provided always the enemy is warned within the time agreed upon, in accordance with the terms of the armistice.

"ARTICLE XXXVII. An armistice may be general or local. The first suspends all military operations of the belligerent States; the second, only those between certain factions of the belligerent armies and in a fixed radius.

"ARTICLE XXXVIII. An armistice must be notified officially, and in good time, to the competent authorities and the troops. Hostilities are suspended immediately after the notification, or at a fixed date.

"ARTICLE XXXIX. It is for the Contracting Parties to settle, in the terms of the armistice, what communications may be held, on the theatre of war, with the population and with each other.

"ARTICLE XL. Any serious violation of the armistice by one of the parties gives the other party the right to denounce it, and even, in case of urgency, to recommence hostilities at once.

"ARTICLE XLI. A violation of the terms of the armistice by private individuals acting on their own initiative, only confers the right of demanding the punishment of the offenders, and, if necessary, indemnity for the losses sustained."

Convention respecting the Laws and Customs of War on Land, The Hague,
July 29, 1899, 32 Stat. II. 1820, 1821.

"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."

Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842, 6 Webster's
Works, 438.

"This I shall add by the way, that truces, and such like agreements, do immediately oblige both parties consenting from the time they are concluded; but the subjects on both sides then begin to be bound, when the truce receives the form of law, that is, when it has been solemnly notified, which being done, it immediately begins to have the power to bind the subjects. But that power, if the publication is made only in one place, shall not at that instant extend itself throughout the whole dominion; but upon a convenient time allowed, to give notice in every place. And if any thing in the mean time be done by the subjects contrary to the truce, they shall not be punishable for it. The contracting parties, however, are not the less bound to repair those damages."

Grotius, De Jure Belli ac Pacis, Book III., cap. XXI. § v.

"A truce, or suspension of arms, does not terminate the war, but it is one of the commercia belli which suspends its operations. These conventions rest upon the obligation of good faith, and as they lead to pacific negotiations, and are necessary to control hostilities, and promote the cause of humanity, they are sacredly observed by civilised nations.

"A particular truce is only a partial cessation of hostilities, as between a town and an army besieging it. But a general truce applies to the operations of the war; and if it be for a long or indefinite period of time, it amounts to a temporary peace, which leaves the state of the contending parties, and the questions between them, remaining in the same situation as it found them."

Abdy's Kent, 377.

"SEC. 402. A suspension of hostilities binds the contracting parties, and all acting immediately under their direction, from the time it is concluded; but it must be duly promulgated in order to have a force of legal obligation with regard to the other subjects of the belligerent states; so that if, before such notification, they have committed any act of hostility, they are not personally responsible, unless their ignorance be imputable to their own fault or negligence. But as the supreme power of the state is bound to fulfill its own engagements, or those made by its authority, express or implied,

the government of the captor is bound, in the case of a suspension of hostilities by sea, to restore all prizes made in contravention of the armistice. To prevent the disputes and difficulties arising from such questions, it is usual to stipulate in the convention of armistice, as in treaties of peace, a prospective period within which hostilities are to cease, with a due regard to the situation and distance of places. "SEC. 403. Besides the general maxims applicable to the interpretation of all international compacts, there are some rules peculiarly applicable to conventions for the suspension of hostilities. The first of these peculiar rules, as laid down by Vattel, is that each party may do within his own territory, or within the limits prescribed by the armistice, whatever he could do in time of peace. Thus either of the belligerent parties may levy and march troops, collect provisions and other munitions of war, receive re-enforcements from his allies, or repair the fortifications of a place not actually besieged.

The second rule is, that neither party can take advantage of the truce to execute, without peril to himself, what the continuance of hostilities might have disabled him from doing. Such an act would be a fraudulent violation of the armistice. For example:-In the case of a truce between the commander of a fortified town and the army besieging it, neither party is at liberty to continue works, constructed either for attack or defence, or to erect new fortifications for such purposes. Nor can the garrison avail itself of the truce to introduce provisions or succors into the town, through the passages or in any other manner which the besieging army would have been competent to obstruct and prevent, had hostilities not been interrupted by the armistice.

"The third rule stated by Vattel, is rather a corollary from the preceding rules than a distinct principle capable of any separate application. As the truce merely suspends hostilities without terminating the war, all things are to remain in their antecedent state in the places, the possession of which was specially contested at the time of the conclusion of the armistice.

"It is obvious that the contracting parties may, by express compact, derogate in any and every respect from these general conditions."

L

Dana's Wheaton, §§ 402-403, pp. 498–499.

139. An armistice is binding upon the belligerents from the day of the agreed commencement; but the officers of the armies are responsible from the day only when they receive official information of its existence."

Instructions for the Government of Armies of the United States in the

Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
Official Records, series 3, III. 162.

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