"In case of abuse, he has the right to detain the bearer temporarily. "The bearer of a flag of truce 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 instigate or commit an act of treachery." 147. Capitulations. By capitulations is meant the agreements, with the accompanying details, between the commanding officers of opposing forces, by which a surrender is regulated either ashore or afloat. So far as capitulations are of a military nature alone, officers in command acting singly are regarded as competent to make them; but if they include political or other matters they require the ratification by the general government or the commander-in-chief of the operations in the field, if he is so authorized. If the commander of the forces receiving the surrender is limited in this manner in his authority, it is his duty to so notify the enemy. Article 35 of The Hague convention reads as follows: "Capitulations agreed on between the contracting parties must be in accordance with the rules of military honor. "When once settled, they must be scrupulously observed by both the parties." 148. Armistices.-The articles bearing upon this subject are as follows: "Article 36. An armistice suspends military operations by mutual 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 on by the terms of the armistice. "Article 37. An armistice may be general or local. The first suspends all military operations of the belligerent states; the second, only those between certain fractions of the belligerent armies and in a fixed radius. "Article 38. An armistice must be notified officially and in good time to the competent authorities and the troops. Hos tilities are suspended immediately after the notification or at a fixed date. "Article 39. It is for the contracting parties to settle in the clauses of the armistice what may be the relations on the theatre of war with and between the populations. "Article 40. 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 41. A violation of the terms of the armistice by private individuals acting on their own initiation only confers the right of demanding the punishment of the offenders and, if necessary, indemnity for the losses sustained." General armistices include the entire area of military and naval operations. They are made, as a rule, by the governments concerned or by their authority as preludes to negotiations for peace. Being so comprehensive in character, general armistices are drawn up with considerable detail and stipulations. They are binding upon individuals and forces from the date of notification, but, as in case of naval operations this may be delayed, special arrangements being made in such cases in regard to the capture of prizes, etc. Section III and Articles 42 to 56, inclusive, of The Hague convention relate to military authority over the territory of the hostile state and will be discussed later under the head of military occupation. Section IV, including Articles 57 to 60, inclusive, which relates to the internment of belligerents and the care of the wounded in neutral countries, is discussed later, also under the head of relations between belligerents and neutrals. 149. Reprisals or Retaliation. This subject was not treated upon by The Hague convention on the laws and customs of war on land. As Holland says: "The permissibility of such measures is a painful exception to the rule that a belligerent must observe the laws of war, even without reciprocity on the part of the enemy. Reprisals must be sparingly exercised, and then not by way of vengeance but solely in order to prevent a repetition of the offence complained of." Holland also proposes rules upon the subject of reprisals or retaliation which, he says, are intended to represent prevalent authoritative opinion upon this subject, as to which no written rules have yet been adopted by international consent. They read as follows: 'Reprisals must be exercised only subject to the following restrictions: "1. The offence in question must have been carefully inquired into. "2. Redress for the wrong or punishment of the real offender must be unattainable. "3. The reprisals must be authorized, unless under very special circumstances, by the commander-in-chief. "4. They must not be disproportionate to the offence and must in no case be of a barbarous character." 1 Retaliation or reprisals must not be confounded with the punishment of an offender for violation of the rules of war. TOPICS AND REFERENCES 1. Laws of War in General Westlake's "International Law," 2d ed., part II, chap. III. W. E. 2. Modern Development of the Laws of War Oppenheim, "International Law," 2d ed., vol. II, 78-83. Higgins, "Hague Conferences," 256-272. Moore's "Digest of International Law," vol. VII, 338–340. 3. War and the Private Citizen Holland, "The Law of War on Land," 1908. Higgins, "War and the Private Citizen," 1912. Moore's "Digest of International Law," vol. VII, chaps. XXIII to XXVIII, inclusive. 1 Holland, "Laws of War on Land," 1908, pp. 60, 61. 4. The Laws of War on Land. Belligerents Hershey's "Elements of International Law," 372-4. Higgins, "War and the Private Citizen," 1-70, and 89-112. Stockton, "Manual of International Law," 180-2. 5. Prisoners of War Hershey's "Elements of International Law," 374-380. Westlake's "International Law," 2d ed., 67-72. W. E. Hall, "International Law," 6th ed., 399-412. 6. Hostilities Brussels Declaration. Higgins, "Hague Conferences," 273-280. Oppenheim, 2d ed., vol. II, 144–204. Moore's "Digest of International Law," vol. VII, 178-215. 7. Spies Ferguson, vol. II, par. 192. Phillimore, vol. III, par. 96. Snow's "International Law," 96. 8. Flags of Truce Davis's "Elements," 3d ed., 337. Boyd's "Wheaton," par. 411. 9. Capitulations Twiss, "The Law of Nations," 353-5. Halleck, Baker's 4th ed., 1878, vol. II, 348, 349, 383. Woolsey, 6th ed., 255. 10. Armistices Westlake, "International Law," 2d ed., vol. II, 92, 93. Hall, 6th ed., 540-5. Davis, ."Elements," 341. 11. Reprisals or Retaliations Davis, "Elements," 324-7. Oppenheim, 2d ed., vol. II, 305-317. 12. Hostages Spaight, "War Rights on Land," 465-470. Bluntschli, sec. 600. Westlake's "International Law," vol. II, 102. Oppenheim's "International Law," vol. II, 272–3. CHAPTER XX MARITIME WARFARE 150. Maritime War in General.-Maritime warfare differs from warfare on land not only in the area of its operations, the instruments of its warfare, and the methods of its fighting but also in many of its laws and usages. Although, as has been previously stated, the laws of land warfare apply in many instances, especially in their generalities, to those applicable to warfare upon the sea, still there are certain rules not only exclusively for sea warfare but in some few instances opposed to practices on land. Such are those applying to the use of false colors, the capture of private property afloat, and the dealing with neutral property. The high seas, by which are meant technically all navigable waters outside of the territorial waters of the various states but including in war time as fighting zones the territorial limits of the belligerents, are the area of naval operations. It gives, hence, an international phase to sea warfare wanting on land. It brings also, as has been already suggested, into full play questions of neutral trade, such as the right of search, captures incident to the carriage of contraband articles, unneutral service, and violation of the blockade of seaports generally open to international trade. The fact that maritime nations are more or less concerned in sea warfare compels the creation of national tribunals by the belligerents for the purpose of determining the legality of the capture of prizes as well as causing the enactment of prize laws and international conventions and codes bearing directly |