International Law. A Treatise Volume Ii Part 33

[Footnote 458: See Pradier-Fodere, VII. No. 2901.]

[Sidenote: Commencement of Armistices.]

-- 238. In case the contrary is not stipulated, an armistice commences the very moment the agreement upon it is complete. But often the parties stipulate in the agreement the time from which the armistice shall begin. If this is done in so detailed a manner that the very hour of the commencement is mentioned, no cause for controversy is given. But sometimes the parties fix only the date by stipulating that the armistice shall last from one certain day to another, _e.g._ from June 15 to July 15. In such case the actual commencement is controversial.

Most publicists maintain that in such case the armistice begins at 12 o'clock of the night between the 14th and the 15th of June, but Grotius (III. c. 21, -- 4) maintains that it begins at 12 o'clock of the night between the 15th and the 16th of June.[459] Therefore, to avoid difficulties, agreements concerning armistices ought always to stipulate whether the first day is to be included in the armistice. Be that as it may, when the forces included in an armistice are dispersed over a very large area, the parties very often stipulate different dates of commencement for the different parts of the front, because it is not possible to announce the armistice at once to all the forces included.

Thus, for instance, article 1 of the general armistice at the end of the Franco-German War[460] stipulated its immediate commencement for the forces in and around Paris, but that with regard to the other forces its commencement should be delayed three days. Article 38 of the Hague Regulations enacts that an armistice must be notified officially and in good time to the competent authorities and the troops, and that hostilities are suspended immediately after the ratification or at a fixed date, as the case may be.

[Footnote 459: See Pradier-Fodere, VII. No. 2897. The controversy occurs again with regard to the end of an armistice; see below, -- 240.]

[Footnote 460: Martens, _N.R.G._ XIX. p. 626.]

It sometimes happens that hostilities are carried on after the commencement of an armistice by forces which did not know of its commencement. In such cases the _status quo_ at the date of the commencement of armistice has to be re-established so far as possible, prisoners made and enemy vessels seized being liberated, capitulations annulled, places occupied evacuated, and the like; but the parties may, of course, stipulate the contrary.

[Sidenote: Violation of Armistices.]

-- 239. Any violation of armistices is prohibited, and, if ordered by the Governments concerned, const.i.tutes an international delinquency. In case an armistice is violated by members of the forces on their own account, the individuals concerned may be punished by the other party in case they fall into its hands. Be that as it may, the question must be answered, what general att.i.tude is to be taken by one party, if the other violates the armistice? No unanimity regarding this point exists among the writers on International Law, many[461] a.s.serting that in case of violation the other party may at once, without giving notice, re-open hostilities; others[462] maintaining that such party may not do this, but has only the right to denounce the armistice. The Hague Regulations endeavour to settle the controversy, article 40 enacting that any serious violation of an armistice by one of the parties gives the other the right to denounce it, and even, in case of urgency, to recommence hostilities at once. Three rules may be formulated from this--(1) violations which are not serious do not even give the right to denounce an armistice; (2) serious violations do as a rule empower the other party to denounce only the armistice, but not to recommence hostilities at once without notice; (3) only in case of urgency is a party justified in recommencing hostilities without notice, when the other party has broken an armistice. But since the terms "serious violation" and "urgency" lack precise definition, it is practically left to the discretion of the injured party.

It must be specially observed that violation of an armistice committed by private individuals acting on their own initiative is to be distinguished from violation by members of the armed forces. In the former case the injured party has, according to article 41 of the Hague Regulations, only the right of demanding punishment of the offenders, and, if necessary, indemnity for losses sustained.

[Footnote 461: See, for instance, Grotius, III. c. 21, -- 11; Pufendorf, VIII. c. 7, -- 11; Vattel, III. -- 242; Phillimore, II. -- 121; Bluntschli, -- 695; Fiore, III. No. 1494.]

[Footnote 462: See, for instance, Calvo, IV. -- 2436; Despagnet, No. 566; Pradier-Fodere, VII. No. 2913.]

[Sidenote: End of Armistices.]

-- 240. In case an armistice has been concluded for an indefinite period, the parties having made no stipulations regarding notice to recommence hostilities, notice may be given at any time, and hostilities recommenced at once after notification. In most cases, however, armistices are agreed upon for a definite period, and then they expire with such period without special notice, unless notification has been expressly stipulated. If, in case of an armistice for a definite period, the exact hour of the termination has not been agreed upon, but only the date, the armistice terminates at twelve o'clock midnight of such date.

In case an armistice has been arranged to last from one certain day to another, _e.g._ from June 15 to July 15, it is again[463] controversial whether July 15 is excluded or included. An armistice may, lastly, be concluded under a resolutive condition, in which case the occurrence of the condition brings the armistice to an end.

[Footnote 463: See above, -- 238.]

CHAPTER VI

MEANS OF SECURING LEGITIMATE WARFARE

I

ON MEANS IN GENERAL OF SECURING LEGITIMATE WARFARE

Bonfils, Nos. 1014-1017--Spaight, p. 460--_Land Warfare_, ---- 435-438.

[Sidenote: Legitimate and Illegitimate Warfare.]

-- 241. Since war is not a condition of anarchy and lawlessness, International Law requires that belligerents shall comply with its rules in carrying on their military and naval operations. So long and in so far as belligerents do this, their warfare is legitimate; if they do not comply with the rules, their warfare is illegitimate. Now, illegitimate acts and omissions can be committed by belligerent Governments themselves, by the commanders or members of their forces, and by their subjects not belonging to the forces. Experience teaches that, on the whole, omissions and the committal of illegitimate acts on the part of individual soldiers are unavoidable during war, since the pa.s.sions which are aroused by and during war will always carry away some individuals.

But belligerents bear a vicarious responsibility for internationally illegal acts of their soldiers, which turns into original responsibility if they refuse to repair the wrong done by punis.h.i.+ng the offenders and, if necessary, indemnifying the sufferers.[464] Cases in which belligerent Governments themselves commit illegitimate acts, as well as cases in which they refuse to punish their soldiers for illegitimate acts const.i.tute international delinquencies.[465] Now, if in time of peace an international delinquency is committed, the offended State can, if the worst comes to the worst, make war against the offender to compel adequate reparation.[466] But if an international delinquency is committed during warfare itself, no means whatever exist of compelling reparation.

[Footnote 464: See above, vol. I. ---- 149-150.]

[Footnote 465: See above, vol. I. -- 151.]

[Footnote 466: See above, vol. I. -- 156.]

[Sidenote: How Legitimate Warfare is on the whole secured.]

-- 242. Yet legitimate warfare is, on the whole at any rate, secured through several means recognised by International Law. These means of securing legitimate warfare may be divided into three cla.s.ses. The first cla.s.s comprises measures of self-help:--reprisals; punishment of war crimes committed by enemy soldiers and other enemy subjects; the taking of hostages. The second cla.s.s comprises:--complaints lodged with the enemy; complaints lodged with neutral States; good offices, mediation, and intervention on the part of neutral States. And there is, thirdly, the fact that, according to article 3 of Convention IV. of the Second Peace Conference, belligerents are responsible for all acts committed by persons forming part of their forces, and are liable to make compensation, if the case demands it, for any violation of the Hague Regulations. These means, as I have said, do on the whole secure the legitimacy of warfare, because it is to the interest of either belligerent to prevent the enemy from getting a justifiable opportunity of making use of them. On the other hand, isolated illegitimate acts of individual enemy soldiers will always occur; but they will in many cases meet with punishment either by one party to the war or the other. As regards hostile acts of private enemy individuals not belonging to the armed forces, belligerents have a right[467] to consider and punish them severely as acts of illegitimate warfare.

[Footnote 467: See below, -- 254.]

II

COMPLAINTS, GOOD OFFICES AND MEDIATION, INTERVENTION

_Land Warfare_, ---- 439-440.

[Sidenote: Complaints lodged with the Enemy.]

-- 243. Commanders of forces engaged in hostilities frequently lodge complaints with each other regarding single acts of illegitimate warfare committed by members of their forces, such as abuses of the flag of truce, violations of such flag or of the Geneva Convention, and the like. The complaint is sent to the enemy under the protection of a flag of truce, and the interest which every commander takes in the legitimate behaviour of his troops will always make him attend to complaints and punish the offenders, provided the complaints concerned are found to be justified. Very often, however, it is impossible to verify the statements in the complaint, and then certain a.s.sertions by one party, and their denial by the other, face each other without there being any way of solving the difficulty. It also often happens during war that the belligerent Governments lodge with each other mutual complaints of illegitimate acts and omissions. Since diplomatic intercourse is broken off during war, such complaints are either sent to the enemy under the protection of a flag of truce or through a neutral[468] State which lends its good offices. But here too indignant a.s.sertion and emphatic denial frequently face each other without there being a way of solving the conflict.

[Footnote 468: Thus, in October 1904, during the Russo-j.a.panese War, j.a.pan sent a complaint concerning the alleged use of Chinese clothing on the part of Russian troops to the Russian Government, through the intermediary of the United States of America; see Takahas.h.i.+, pp.

174-178.]

[Sidenote: Complaints lodged with Neutrals.]

-- 244. If certain grave illegitimate acts or omissions of warfare occur, belligerents frequently lodge complaints with neutral States, either asking their good offices, mediation, or intervention to make the enemy comply with the laws of war, or simply drawing their attention to the facts. Thus, at the beginning of the Franco-German War, France lodged a complaint with Great Britain and asked her intervention on account of the intended creation of a volunteer fleet on the part of Germany, which France considered a violation of the Declaration of Paris.[469]

Conversely, in January 1871, Germany, in a circular addressed to her diplomatic envoys abroad, and to be communicated to the respective neutral Governments, complained of twenty-one cases in which the French forces had, deliberately and intentionally it was alleged, fired on bearers of a flag of truce. Again, in November 1911, and in February 1912, during the Turco-Italian War, Turkey lodged a complaint with the Powers on account of the execution of Arabs in Tripoli as war criminals, and on account of the bombardment of Turkish war vessels in the harbour of Beirut.[470]

[Footnote 469: See above, -- 84.]

[Footnote 470: See above, -- 213.]

[Sidenote: Good Offices and Mediation.]

-- 245. Complaints lodged with neutral States may have the effect of one or more of the latter lending their offices or their mediation to the belligerents for the purpose of settling such conflict as arose out of the alleged illegitimate acts or omissions of warfare, thus preventing them from resorting to reprisals. Such good offices and mediation do not differ from those which settle a difference between States in time of peace and which have been discussed above in ---- 7-11; they are friendly acts in contradistinction to intervention, which is dictatorial interference for the purpose of making the respective belligerents comply with the laws of war.

[Sidenote: Intervention on the part of Neutrals.]

-- 246. There can be no doubt that neutral States, whether a complaint has been lodged with them or not, may either singly, or jointly and collectively, exercise intervention in cases of illegitimate acts or omissions of warfare being committed by belligerent Governments, or committed by members of belligerent forces if the Governments concerned do not punish the offenders. It will be remembered that it has been stated above in Vol. I. -- 135, No. 4, that other States have a right to intervene in case a State violates in time of peace or war those principles of the Law of Nations which are universally recognised. There is not the slightest doubt that such principles of International Law are endangered in case a belligerent Government commits acts of illegitimate warfare or does not punish the offenders in case such acts are committed by members of its armed forces. But apart from this, the Hague Regulations make illegitimate acts of warfare on land now appear as by right the affair of all signatory States to the Convention, and therefore, in case of war between signatory States, the neutral signatory States certainly would have a right of intervention if acts of warfare were committed which are illegitimate according to the Hague Regulations. It must, however, be specially observed that any such intervention, if it ever occurred, would have nothing to do with the war in general and would not make the intervening State a party to the war, but would concern only the international delinquency committed by the one belligerent through acts of illegitimate warfare.

III

REPRISALS

Vattel, III. p. 142--Hall, -- 135--Westlake, II. pp. 112-115, and _Chapters_, pp. 253-258--Taylor, ---- 487 and 507--Wharton, III. -- 348B--Moore, VII. -- 1114--Bluntschli, ---- 567, 580, 654, 685--Lueder in Holtzendorff, IV. p. 392--Pradier-Fodere, VIII.

Nos. 3214-3221--Bonfils, Nos. 1018-1026--Despagnet, No.