XII Non-Hostile Relations Between Belligerents

Chapter Contents
12.1 Introduction
12.2 Principle of Good Faith in Non-Hostile Relations
12.3 Methods for Communication Between Belligerents
12.4 The White Flag of Truce to Initiate Negotiations
12.5 Rules for Parlementaires
12.6 Military Passports, Safe-Conducts, and Safeguards
12.7 Cartels
12.8 Capitulations Negotiated Instruments of Surrender
12.9 Capitulations Subjects Usually Addressed
12.10 Capitulations Violations and Denunciation
12.11 Armistices and Other Cease-Fire Agreements
12.12 Armistices Subjects Usually Addressed
12.13 Armistices Violations and Denunciation
12.14 U.N. Security Council Cease-Fires
12.1 INTRODUCTION
This Chapter addresses the legal principles for non-hostile relations between belligerents
and the basic mechanisms for implementing them.
More specifically, this Chapter addresses the rules for the protection of certain personnel
engaged in non-hostile relations, such as parlementaires, and persons protected by military
passports, safe-conducts, or safeguards. In addition, this Chapter addresses certain agreements
between opposing belligerents, such as cartels, capitulations, and armistices.
12.1.1 Traditional Rule of Non-Intercourse During War. The traditional rule during
international armed conflict is that, even without any special proclamation, all intercourse
between the territories occupied by belligerent forces, including communication, transportation,
and commerce, would cease. 1
The traditional rule of non-intercourse reflects a belligerents authority under the law of
war to limit and regulate intercourse between persons and territory controlled by or belonging to
that belligerent and persons and territory controlled by or belonging to the enemy. 2 For example,
1

See 1956 FM 27-10 (Change No. 1 1976) 449 (All intercourse between the territories occupied by belligerent
armies, whether by traffic, communication, travel, or in any other way, ceases. This is the general rule to be
observed without special proclamation.); LIEBER CODE art. 86 (All intercourse between the territories occupied by
belligerent armies, whether by traffic, by letter, by travel, or in any other way, ceases. This is the general rule, to be
observed without special proclamation.).

See Hamilton v. Dillin, 88 U.S. 73, 97 (1874) (As before stated, the power of the government to impose such
conditions upon commercial intercourse with an enemy in time of war as it sees fit is undoubted. It is a power
which every other government in the world claims and exercises, and which belongs to the government of the
United States as incident to the power to declare war and to carry it on to a successful termination. We regard the

822

States may authorize their military commanders to limit travel and trade within their areas of
operations for security purposes. During armed conflict, States have exercised their authority to
limit intercourse with the enemy in order to avoid supporting the enemys war effort and in order
to speak with one voice in communications with the enemy State.
In particular, the traditional rule of non-intercourse notifies a States nationals and other
persons subject to its jurisdiction that they may be liable to punishment by that State under its
domestic law and war powers if they communicate with or support the States enemies in war
without proper authorization. 3
Exceptions to the general rule of non-intercourse (such as communication with enemy
forces or permission to trade or travel between territories that are controlled by forces hostile to
one another) have been granted on behalf of individuals only with the approval of the
Government or the highest military authority. 4
12.1.1.1 Limitations on the Belligerents Authority to Regulate Intercourse. A
belligerents authority to regulate intercourse between territory it controls and territory controlled
by the enemy is subject to certain limitations.
Insofar as restrictions on travel and trade imposed by a belligerent affect neutral rights,
such restrictions may be limited by the law of neutrality. An Occupying Powers authority to
control travel and trade during belligerent occupation is addressed by the law of occupation. 5

regulations in question as nothing more than the exercise of this power. It does not belong to the same category as
the power to levy and collect taxes, duties, and excises. It belongs to the war powers of the government, just as
much so as the power to levy military contributions, or to perform any other belligerent act.).
3

For example, 10 U.S.C. 904 (Any person who-- (1) aids, or attempts to aid, the enemy with arms, ammunition,
supplies, money, or other things; or (2) without proper authority, knowingly harbors or protects or gives intelligence
to, or communicates or corresponds with or holds any intercourse with the enemy, either directly or indirectly; shall
suffer death or such other punishment as a court-martial or military commission may direct. This section does not
apply to a military commission established under chapter 47A of this title.); Amos T. Akerman, Attorney General,
Unlawful Traffic with Indians, Jul. 19, 1871, 13 OPINIONS OF THE ATTORNEY GENERAL 470, 471-72 (1873) (But I
observe that General Sherman, in his letter, refers to the parties apprehended by the military as having been captured
while engaged in unlawful traffic with hostile Indians; and the papers submitted show that a portion of the property
employed in this trade consisted of ammunition. Now, if the Indians to whom the captured persons were thus
supplying ammunition, &c., were in open and notorious hostility to the United States at the time, and, therefore,
properly came within the description of public enemies, the parties apprehended would seem to be amenable to trial
and punishment by court-martial under the 56th article of war, which applies to persons who are not, as well as to
persons who are, in the military service.); LIEBER CODE art. 86 (Contraventions of this rule [of non-intercourse]
are highly punishable.).
4

1956 FM 27-10 (Change No. 1 1976) 450 (Exceptions to this rule, whether by safe-conduct, license to trade,
exchange of mails, or travel from one territory into the other, are made on behalf of individuals only with the
approval of the Government or the highest military authority.); LIEBER CODE art. 86 (Exceptions to this rule,
whether by safe-conduct, or permission to trade on a small or large scale, or by exchanging mails, or by travel from
one territory into the other, can take place only according to agreement approved by the government, or by the
highest military authority.).
5

Refer to 11.12 (Movement of Persons in Occupied Territory); 11.23.4 (Regulation of External Trade).

823

Under the GC, however, protected persons in a belligerents home country, or in territory
occupied by a belligerent, are entitled to leave unless such departure is contrary to the interests of
the State. 6
12.1.2 Necessity for Non-Hostile Relations. Despite the general rule of non-intercourse
during war, the conduct of war and the restoration of peace require certain non-hostile relations
between belligerents. 7
12.1.2.1 Non-Hostile Relations to Facilitate Humanitarian Activities During
Armed Conflict. Non-hostile relations, including local communication between belligerent
forces, may be necessary to facilitate the conclusion and implementation of special agreements
contemplated by the 1949 Geneva Conventions. These include:

special agreements to facilitate the protection of the wounded, sick, shipwrecked, and
medical personnel, 8 such as
o armistices or local arrangements to permit the removal, exchange, or transport of
the wounded and sick; 9

special agreements to facilitate the protection of POWs, 10 such as

o agreements to effect the direct repatriation or accommodation in neutral countries
of certain seriously wounded and sick POWs during hostilities; 11 and

special agreements to facilitate the protection of civilians, 12 such as

o agreements to establish areas where civilians or the wounded and sick are
protected. 13

Relatedly, non-hostile relations, including local communication between belligerent

forces, may also be necessary:

to obtain the necessary consent for the appointment of Protecting Powers; 14

Refer to 10.8.2 (Departures of Protected Persons From a Belligerents Home Territory); 11.12.2 (Departure of
Protected Persons Who Are Not Nationals of the State Whose Territory Is Occupied).
7

1956 FM 27-10 (Change No. 1 1976) 451 (The conduct of war and the restoration of peace require certain
nonhostile relations between belligerents.).
8

Refer to 7.1.1.2 (Special Agreements Under the GWS and GWS-Sea).

Refer to 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the
Wounded).
10

Refer to 9.1.2.2 (Special Agreements Under the GPW).

11

Refer to 9.36 (Direct Repatriation and Accommodation in Neutral Countries During Hostilities).

12

Refer to 10.1.1.2 (Special Agreements Under the GC).

13

Refer to 5.14.3 (Establishing Areas Where Civilians or the Wounded and Sick Are Protected).

824

to establish safe-conduct protections for certain persons or property under the 1949
Geneva Conventions; 15 and

to conclude special agreements applicable to a non-international armed conflict to bring

into effect treaty provisions that would normally only apply during international armed
conflict. 16

12.1.2.2 Non-Hostile Relations to Facilitate the Restoration of Peace. Nonhostile relations, including local communication between belligerent forces, may also be
important in facilitating the restoration of peace, including by facilitating:

ceasefires or local armistices that implement a general armistice;

armistices that are a prelude to a peace treaty; 17

the permanent cessation of hostilities through a peace treaty;

agreements on the repatriation of POWs or retained personnel after the cessation of

hostilities; 18

measures to protect civilians from the effects of minefields, mined areas, mines, boobytraps, and other devices, such as information sharing with another party or parties to the
conflict; 19 and

the provision of certain assistance to facilitate the marking and clearance, removal, or
destruction of explosive remnants of war, in cases where a user of explosive ordnance
that has become explosive remnants of war does not exercise control of the territory. 20

12.2 PRINCIPLE OF GOOD FAITH IN NON-HOSTILE RELATIONS

Absolute good faith with the enemy must be observed as a rule of conduct, including in
non-hostile relations between opposing belligerents. 21 In particular, in the context of non-hostile
relations, the principle of good faith requires that:

14

Refer to 18.15.2 (Appointment of a Protecting Power).

15

Refer to 12.6.3.3 (Safe-Conducts Contemplated by the 1949 Geneva Conventions).

16

Refer to 17.3 (Special Agreements Between Parties to the Conflict).

17

Refer to 12.11.1.2 (Armistice as a Suspension of Hostilities and Not a Peace Treaty).

18

Refer to 9.37.1 (Agreements on POW Release and Repatriation).

19

Refer to 6.12.12 (Obligations Arising After the Cessation of Active Hostilities).

20

Refer to 6.20.8 (Providing Assistance to Facilitate the Removal of Explosive Remnants of War From a Partys
Military Operations in Areas Outside Its Control).
21

Refer to 5.21 (Overview of Good Faith, Perfidy, and Ruses).

825

compacts between enemies, such as truces and capitulations, shall be faithfully adhered
to; 22

no advantage not intended to be given by the adversary shall be taken; 23 and

the means of conducting non-hostile relations (such as flags of truce) must not be
misused. 24
On the other hand, the principle of good faith does not prohibit belligerents from:

continuing their military operations while negotiations are ongoing; 25 or

declining to respond to offers to negotiate, refusing offers to negotiate, or refusing

specific offers from the adversary for reasons of military expediency. 26

12.3 METHODS FOR COMMUNICATION BETWEEN BELLIGERENTS

Belligerents may communicate with one another through a variety of methods, including:

directly by telecommunications; 27

22

Daniel Webster, Secretary of State, Letter to Waddy Thompson, Esq., Envoy Extraordinary and Minister
Plenipotentiary of the United States to the Mexican Republic, Apr. 15, 1842, reprinted in THE DIPLOMATIC AND
OFFICIAL PAPERS OF DANIEL WEBSTER, WHILE SECRETARY OF STATE 321, 331 (1848) (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.).
23

1956 FM 27-10 (Change No. 1 1976) 453 (It is absolutely essential in all nonhostile relations that the most
scrupulous good faith shall be observed by both parties, and that no advantage not intended to be given by the
adversary shall be taken.).
24

2004 UK MANUAL 10.2 (Whenever there are non-hostile relations between parties to an armed conflict, those
relations must be conducted with the utmost good faith and any agreement reached scrupulously observed. In
particular, there should be no abuse of a flag of truce or emblems of identification in dealings between
belligerents.).
25

For example, Donald W. Boose, Jr., Fighting While Talking: The Korean War Truce Talks, OAH MAGAZINE OF
HISTORY, 25, 27 (Spring 2000) (The truce talks resumed on 26 April [1953], and the two sides quickly agreed on
the broad outlines of a plan to deal with the POW issue through a Neutral Nations Repatriation Commission
composed of the same members as the Neutral Nations Supervisory Commission, in addition to India. There were
still unresolved issues, however. The U.S. leadership, losing patience with the slow pace of negotiations, now
attempted to use military action to pressure the Chinese and North Koreans. In May U.S. aircraft attacked irrigation
dams near Pyongyang, disrupting rail lines and roads and further straining the North Korean infrastructure. Then on
20 May Eisenhower and his advisors decided that if no progress were made, the UNC would initiate a military
offensive that might include attacks on China and the use of nuclear weapons.).
26

Refer to 12.5.2 (Refusal or Reception of a Parlementaire).

27

For example, James Reston, Ridgway in Offer; Key Figure in Truce Plan Receives a Visitor U.S. Asks Command
of Reds to Parley, THE NEW YORK TIMES, Jun. 30, 1951 (In accordance with Presidential instructions
recommended by the National Security Council and dispatched from the Pentagon at 1:27 oclock this afternoon,
Gen. Matthew B. Ridgway of the United States broadcast the following message at 6 P.M. to The Commander in
Chief, Communist Forces in Korea:).

826

through the traditional mechanism of a display of a flag of truce and the sending of
parlementaires; 28

in conferences between belligerent representatives in an agreed neutral zone; 29

through international organizations, such as the United Nations;

indirectly through another State, such as a Protecting Power; 30 and

indirectly through the ICRC or other impartial humanitarian organization. 31

12.4 THE WHITE FLAG OF TRUCE TO INITIATE NEGOTIATIONS

In the past, the normal means of initiating negotiations between belligerents has been the
display of the white flag of truce. 32
12.4.1 Meaning of the White Flaga Desire to Communicate. As a legal matter, the
white flag, when used by military forces, indicates a desire to communicate with the enemy. The
hoisting of a white flag has no other legal meaning in the law of war. 33
The hoisting of a white flag may indicate that the party hoisting it desires to open
communication with a view to an armistice (e.g., to enable forces to collect the wounded) or a
surrender. 34 If hoisted during a military action by an individual combatant or a small party of
combatants, it may signify merely that those persons or forces wish to surrender. 35 Although the
white flag has been used with this intent, the display of the white flag does not necessarily mean
that the person or forces displaying it are prepared to surrender. Moreover, enemy forces in the
immediate area might not have the same intent as the individual or forces displaying the white
28

Refer to 12.4 (The White Flag of Truce to Initiate Negotiations); 12.5 (Rules for Parlementaires).

29

Refer to 12.5.5 (Neutral Zone and Other Appropriate Measures to Facilitate Negotiations).

30

For example, Acceptance of Germanys Offer Concerning Prisoners of War, Apr. 23, 1945, 12 DEPARTMENT OF
STATE BULLETIN 810 (Apr. 29, 1945) (The Department of State and the War Department announced on April 23
that the Government of the United States has accepted an offer of the German Government to leave in camps all
prisoners of war as the Allies advance. The proposal of the German Government was made to the United States
through the Swiss Government as protecting power.).
31

1956 FM 27-10 (Change No. 1 1976) 452 (One belligerent may communicate with another directly by radio,
through parlementaires, or in a conference, and indirectly through a Protecting Power, a third State other than a
Protecting Power, or the International Committee of the Red Cross.).
32

1956 FM 27-10 (Change No. 1 1976) 458 (In the past, the normal means of initiating negotiations between
belligerents has been the display of a white flag.).
33

1956 FM 27-10 (Change No. 1 1976) 458 (The white flag, when used by troops, indicates a desire to
communicate with the enemy. The hoisting of a white flag has no other signification in international law.).
34

1956 FM 27-10 (Change No. 1 1976) 458 (It may indicate that the party hoisting it desires to open
communication with a view to an armistice or a surrender.).
35

1956 FM 27-10 (Change No. 1 1976) 458 (If hoisted in action by an individual soldier or a small party, it may
signify merely the surrender of that soldier or party.).

827

flag, especially where the display of the white flag was not authorized by the individual or
forces commander.
12.4.2 Rules for the Party Displaying the White Flag. Forces displaying a flag of truce
must show clearly that they intend to engage in non-hostile relations. They bear the burden of
communicating their intent to the adversary.
To indicate that the hoisting of the white flag is authorized by its commander, the
appearance of the flag should be accompanied or followed promptly by a complete cessation of
fire from that side. 36
The commander authorizing the hoisting of the flag should also promptly send a
parlementaire to communicate the commanders intent. 37
12.4.2.1 Prohibition on Improper Use of the Flag of Truce. It is especially
forbidden to make improper use of a flag of truce. 38 It would be improper to use a flag of truce
to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no
such intention. 39
It is an abuse of the flag of truce if the force that sends a parlementaire does not halt and
cease fire while the parlementaire is approaching, or is being received by, the other party. 40
Improper use of a flag of truce also includes its use while engaging in attacks or in order
to shield, favor, or protect ones own military operations, or otherwise to impede enemy military
operations. 41 For example, flags of truce may not be used surreptitiously to obtain military

36

1956 FM 27-10 (Change No. 1 1976) 458 (To indicate that the hoisting is authorized by its commander, the
appearance of the flag should be accompanied or followed promptly by a complete cessation of fire from that
side.); 1958 UK MANUAL 395 (It is essential, however, that the troops who hoist the white flag to indicate a wish
to enter into communication with the enemy, should halt and cease firing, for otherwise the enemy cannot be certain
that the hoisting of the white flag is authorised.).
37

1956 FM 27-10 (Change No. 1 1976) 458 (The commander authorizing the hoisting of the flag should also
promptly send a parlementaire or parlementaires.).
38

HAGUE IV REG. art. 23(f) (it is especially forbidden [t]o make improper use of a flag of truce). Consider AP I
art. 38(1)(a) (It is also prohibited to misuse deliberately in an armed conflict other internationally recognized
protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property.).

39

Cf. 10 U.S.C. 950t (18) (Any person subject to this chapter who uses a flag of truce to feign an intention to
negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military
commission under this chapter may direct.).

40

1958 UK MANUAL 415 (The improper use of a flag of truce is forbidden. It is an abuse of the flag of truce if the
force which sends a parlementaire does not halt and cease fire whilst the parlementaire is approaching, or is being
received by, the other party.); 1956 FM 27-10 (Change No. 1 1976) 467 (It is an abuse of the flag of truce,
forbidden as an improper ruse under Article 23 (f), HR (par. 52), for an enemy not to halt and cease firing while the
parlementaire sent by him is advancing and being received by the other party;).
41

Refer to 5.16 (Prohibition on Using Protected Persons and Objects to Shield, Favor, or Impede Military
Operations).

828

information, or with the purpose of obtaining time to effect a withdrawal, secure reinforcements,
resupply, or conduct other operations. 42
12.4.3 Rules for the Party to Whom the White Flag Is Displayed. A party is not required
to cease firing or other military operations when a white flag is raised by the other side. 43
It is essential to determine with reasonable certainty that the flag is shown by actual
authority of the enemy commander before basing important action upon that assumption. 44 For
example, forces should not assume that all enemy forces in the locality intend to surrender and
expose themselves to hostile fire based on the enemys display of a white flag. 45
Fire must not be directed intentionally on the person carrying the white flag or on persons
near him or her unless there is a clear manifestation of hostile intent by those persons. 46
12.5 RULES FOR PARLEMENTAIRES
After the display of the white flag, a parlementaire would be sent to conduct
negotiations, traveling under the display and protection of the white flag of truce.
12.5.1 The Parlementaire and Party. Parlementaires ordinarily are agents employed by
commanders of belligerent forces in the field, to go in person within the enemy lines, for the
purpose of communicating or negotiating openly and directly with the enemy commander. 47

42

LIEBER CODE art. 114 (If it be discovered, and fairly proved, that a flag of truce has been abused for
surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his sacred character is deemed a
spy. So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an
especially heinous offense, great caution is requisite, on the other hand, in convicting the bearer of a flag of truce as
a spy.); 1958 UK MANUAL 416 (It is also an abuse of the flag of truce to use a white flag for the purpose of
making the enemy believe that a parlementaire is about to be sent when there is no such intention, and to carry out
operations under the protection granted by the enemy to the pretended flag of truce.).
43

1956 FM 27-10 (Change No. 1 1976) 458 (The enemy is not required to cease firing when a white flag is
raised.); LIEBER CODE art. 112 (Firing is not required to cease on the appearance of a flag of truce in battle.).
44

1956 FM 27-10 (Change No. 1 1976) 458 (It is essential, therefore, to determine with reasonable certainty that
the flag is shown by actual authority of the enemy commander before basing important action upon that
assumption.).
45

For example, 2004 UK MANUAL 10.5.2 footnote 10 (A British officer was killed at Goose Green during the
Falklands conflict 1982 when moving towards a white flag. The shots were not fired by those displaying the white
flag, but by others in the vicinity.); SPAIGHT, WAR RIGHTS ON LAND 92-93 (At Spion-Kop, some of the British
troops in an advanced trench on the mountain held up handkerchiefs in token of surrender, and the Boers came
forward to take them prisoners; they were fired upon by the other British soldiers, and some of them and also some
of the prisoners were shot. Presidents Kruger and Steyn protested against this abuse of the white flag, but the
protest cannot be upheld. For the particular men who put up the signal of surrender to have fired on their captors
would have been treachery, but their comrades were not bound by their action; the surrender was not authorised and
the main body of the British troops on the hill were perfectly entitled to disregard it and to fire both on their own
men who surrendered and on the enemy disarming them.).
46
1956 FM 27-10 (Change No. 1 1976) 461 (Fire should not be intentionally directed on parlementaires or those
accompanying them.); 1958 UK MANUAL 396 (Fire must not be directed intentionally on the person carrying the
white flag or on persons near him.).

829

12.5.1.1 Parlementaire Notes on Terminology. The term parlementaire is

derived from parley and was adopted by governments at the First Hague Peace Conference in
1899. 48 These provisions were repeated in the 1907 Hague IV Regulations.
Article 32 of the Hague IV Regulations provides that a person is regarded as bearing a
flag of truce who has been authorized by one of the belligerents to enter into communication
with the other, and who advances bearing a white flag. 49 Although the word parlementaire has
been translated as a person bearing a flag of truce, the parlementaire need not physically carry
the white flag. 50
12.5.1.2 Authorization and Credentials of the Parlementaire. A parlementaire
must be authorized by a belligerent to enter into communications with the other side. 51 To
demonstrate the authorization to negotiate, a parlementaire must be duly authorized in a written
instrument signed by the commander of his or her forces. 52
12.5.1.3 Members of a Parlementaire Party. A parlementaire may come alone, or
he or she may request to have others, such as an interpreter, accompany him or her. In the past,
flag-bearers or drummers accompanied parlementaires to reduce the risk that the parlementaires
would be inadvertently attacked. 53 In modern warfare, members of a parlementaires party may

47

1956 FM 27-10 (Change No. 1 1976) 459 (Parlementaires are agents employed by commanders of belligerent
forces in the field, to go in person within the enemy lines, for the purpose of communicating or negotiating openly
and directly with the enemy commander.).
48

1958 UK MANUAL 389 (The usual agents in the non-hostile intercourse of belligerent armies are known as
parlementaires.); 1958 UK MANUAL 389 note 1 (It has been thought desirable to adopt this term, for which the
ancient verb to parley would seem good authority, from the Hague Rules; it is current in other armies, in addition
to the expression flag of truce. The use of the latter term by British manuals in the past to mean sometimes both
the envoy and the emblem, sometimes only the envoy, and at other times the envoy and his attendants, has given rise
to some confusion. The use of the expression bearer of a flag of truce to signify the principal agent is also
misleading, as he is seldom the actual bearer of the flag.).
49

HAGUE IV REG. art. 32.

50

1914 RULES OF LAND WARFARE 235 note 1 (The adoption of the word parlementaire to designate and
distinguish the agent or envoy seems absolutely essential in order to avoid confusion and because all other nations,
including Great Britain, utilize the word. In the past this word has been translated at times to mean the agent or
envoy only, at other times the agent and emblem, or both. To call the parlementaire the bearer of a flag of truce is
not in reality correct, because he seldom, if ever, actually carries it.).
51

HAGUE IV REG. art. 32 (A person is regarded as bearing a flag of truce who has been authorized by one of the
belligerents to enter into communication with the other, and who advances bearing a white flag.).

52

1956 FM 27-10 (Change No. 1 1976) 462 (Parlementaires must be duly authorized in a written instrument
signed by the commander of the forces.).
53

HAGUE IV REG. art. 32 (A person is regarded as bearing a flag of truce who has been authorized by one of the
belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to
inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany
him.).

830

include, for example, a driver and communications personnel, and they would take similar
measures to make their status and purpose clear to the other side. 54
12.5.2 Refusal or Reception of a Parlementaire. The commander to whom a flag of truce
is sent is not in all cases obliged to receive it. 55 A commander may decline to receive a
parlementaire for reasons of military necessity, such as if the reception of the parlementaire
would interfere with the commanders operations. 56 However, a belligerent may not declare
beforehand, even for a specified period except in case of reprisal for abuses of the flag of truce
that it will not receive parlementaires. 57
A commander may declare the formalities and conditions upon which he or she will
receive a parlementaire and fix the hour and place at which the parlementaire must appear. 58
The receiving commander may set the details of the meeting, such as the time, place, number of
persons accompanying the parlementaire, authorized method of transport (e.g., foot or vehicle),
and the frequency of meetings if more than one will take place. For example, the receiving
commander may limit the size of the parlementaires party and need not allow an unnecessary
repetition of parlementaire visits. 59
Although commanders may refuse to receive parlementaires and other enemy envoys
seeking to negotiate, commanders may not refuse the unconditional surrender of the adversary or
declare that they will refuse unconditional surrender. 60
12.5.3 Duties and Liabilities of the Parlementaire. Persons who display a white flag
during combat accept the risk that they might be inadvertently wounded or killed while
attempting to communicate with opposing forces. 61 Parlementaires bear the burden of
54

See also 2004 UK MANUAL 10.4 footnote 5 (Although the reference here is to trumpeter, bugler or drummer,
the flag bearer and interpreter who may accompany him, in modern warfare, the party is more likely to consist of a
driver and radio operator, together with an interpreter. The interpreter will not necessarily be a member of the
armed forces and may be a civilian. The white flag will most likely be attached to the vehicle conveying the
party.).

55

HAGUE IV REG. art. 33 (The commander to whom a flag of truce is sent is not in all cases obliged to receive it.).
See also LIEBER CODE art. 111 (The bearer of a flag of truce cannot insist upon being admitted. He must always be
admitted with great caution. Unnecessary frequency is carefully to be avoided.).

56

1958 UK MANUAL 398 (The commander to whom a parlementaire is sent is not obliged to receive him in every
case. There may be a movement in progress the success of which depends on secrecy, or owing to the state of the
defences, it may be considered undesirable to allow an envoy to approach a besieged locality.).
57

1956 FM 27-10 (Change No. 1 1976) 464 (The present rule is that a belligerent may not declare beforehand,
even for a specified period -- except in case of reprisal for abuses of the flag of truce -- that he will not receive
parlementaires.).
58

1956 FM 27-10 (Change No. 1 1976) 464 (A commander may declare the formalities and conditions upon
which he will receive a parlementaire and fix the hour and place at which he must appear.).
59

See, e.g., 1956 FM 27-10 (Change No. 1 1976) 464 (An unnecessary repetition of visits need not be allowed.);
LIEBER CODE art. 111 (Unnecessary frequency is carefully to be avoided.).
60

Refer to 5.5.7 (Prohibition Against Declaring That No Quarter Be Given); 5.10.3 (Persons Who Have
Surrendered).
61

1956 FM 27-10 (Change No. 1 1976) 461 (If, however, the parlementaires or those near them present
themselves during an engagement and are killed or wounded, it furnishes no ground for complaint.); LIEBER CODE

831

communicating their status to the enemy. 62 They should take appropriate measures to help
clarify their status to enemy forces. For example, the parlementaires party should move slowly
and deliberately so that it is not inadvertently attacked. 63
While within the lines of the enemy, the parlementaire must obey all instructions given
to him or her. The parlementaire may be required to deliver his or her message to a subordinate
of the commander. 64
12.5.4 Rights of Inviolability of the Parlementaire. A parlementaire and members of the
parlementaires party (e.g., an interpreter) have a right to inviolability. 65 For example, it would
be a serious violation of good faith to attack deliberately a parlementaires party that has been
received and acknowledged. 66
12.5.4.1 Security Measures Are Consistent With Inviolability. The receiving
commander, however, may take all the necessary steps to prevent the envoy from taking
advantage of his or her mission to obtain information. 67 For example, the envoy and the envoys
interpreter may be blindfolded or hooded for security purposes. 68
12.5.4.2 Loss of Rights of Inviolability of Parlementaire. A parlementaire loses
his or her rights of inviolability if it is proved in a clear and uncontestable manner that he or she
has taken advantage of his or her privileged position to provoke or commit an act of treachery. 69
art. 113 (If the bearer of a flag of truce, presenting himself during an engagement, is killed or wounded, it furnishes
no ground of complaint whatever.). Refer to 5.12.3.2 (Harm to Certain Individuals Who May Be Employed In or
On Military Objectives).
62

See 1956 FM 27-10 (Change No. 1 1976) 461 (It is the duty of the parlementaire to select a propitious moment
for displaying his flag, such as during the intervals of active operations, and to avoid dangerous zones by making a
detour.); 1958 UK MANUAL 396 (It is for the parlementaire to wait until there is a propitious moment, or to make
a detour to avoid a dangerous zone.).
63

See 1958 UK MANUAL 402 note 1 (Unfortunate incidents may occur if the parlementaire arrives at or leaves the
enemy lines at speed as he may draw fire before he is recognised.).

64

1956 FM 27-10 (Change No. 1 1976) 464 (While within the lines of the enemy, the parlementaire must obey all
instructions given him. He may be required to deliver his message to a subordinate of the commander.).
65

HAGUE IV REG. art. 32 (A person is regarded as bearing a flag of truce who has been authorized by one of the
belligerents to enter into communication with the other, and who advances bearing a white flag. He has a right to
inviolability, as well as the trumpeter, bugler or drummer, the flag-bearer and interpreter who may accompany
him.).
66

George H. Williams, Attorney General, The Modoc Indian Prisoners, Jun. 7, 1873, 14 OPINIONS OF THE
ATTORNEY GENERAL 249, 250 (1875) (According to the laws of war there is nothing more sacred than a flag of
truce dispatched in good faith, and there can be no greater act of perfidy and treachery than the assassination of its
bearers after they have been acknowledged and received by those to whom they are sent.).
67

HAGUE IV REG. art. 33 ([The commander to whom a flag of truce is sent] may take all the necessary steps to
prevent the envoy taking advantage of his mission to obtain information.).

68

SPAIGHT, WAR RIGHTS ON LAND 217-18 ([I]t is no indignity for a parlementaire, however high his rank, to have
his eyes bandaged.).

69

HAGUE IV REG. art. 34 (The envoy loses his rights 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.).

832

Such acts of treachery include sabotage or the secret gathering of information about the
adversary while under the adversarys protection. 70
A parlementaire does not commit an act of treachery if he or she reports what he or she
observed in plain sight during his or her mission. 71
12.5.4.3 Detention of Parlementaire. In case of abuse of a flag of truce, a
commander to whom a flag of truce is sent has the right to detain the envoy temporarily. 72
In addition to the right of detention for abuse of his or her position, a parlementaire may
be detained for other imperative security reasons. For example, a parlementaire admitted during
an engagement may be detained pending the conclusion of the immediate fighting. 73 In addition,
a parlementaire may be detained in case he or she has seen anything that may be detrimental to
the enemy, or otherwise obtained such knowledge, or if the envoys departure would reveal
information on the movement of forces. 74
A parlementaire should be detained only so long as circumstances imperatively require,
and information regarding the parlementaires detention, as well as any other action against the
parlementaire or against any member of the parlementaires party, should be sent to his or her
commander. 75
12.5.5 Neutral Zone and Other Appropriate Measures to Facilitate Negotiations. If it is
anticipated that negotiations between belligerents may be prolonged, a neutralized area may by
70

1958 UK MANUAL 410 note 1 (Examples of a parlementaire abusing his position are the making of sketch maps
or taking photographs of defense positions and the secret gathering of information.).

71

1958 UK MANUAL 408 (A parlementaire is not, however, forbidden to observe, and afterwards report, what his
enemy does not hide.); SPAIGHT, WAR RIGHTS ON LAND 219 (It is for the commander who receives the flag of
truce to ensure that the bearer gains no information, whether by sight or speech, and if he fails to take the requisite
precautions, it is palpably unjust to treat the envoys offense, for which his (the commanders) contributory
negligence is partly to blame, as the very grave offence of spying.).
72

HAGUE IV REG. art. 33 (The commander to whom a flag of truce is sent is not in all cases obliged to receive it.
He may take all the necessary steps to prevent the envoy taking advantage of his mission to obtain information. In
case of abuse, he has the right to detain the envoy temporarily.).

73

LIEBER CODE art. 112 (If the bearer of a flag of truce offer himself during an engagement, he can be admitted as
a very rare exception only. It is no breach of good faith to retain such flag of truce, if admitted during the
engagement.).

74

1956 FM 27-10 (Change No. 1 1976) 465 (In addition to the 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 would reveal information on the movement of troops.); 1958 UK MANUAL 412
(According to the Hague Rules a commander has the right to detain a parlementaire temporarily if the latter abuses
his position. In addition, a commander has, by a customary rule of international law, the right to retain a
parlementaire so long as circumstances require, if the latter has seen anything, knowledge of which might have
adverse consequences for the receiving forces, or if his departure would coincide with movements of forces whose
destination or employment he might guess. See Hague Rules 33.).
75
1956 FM 27-10 (Change No. 1 1976) 465 (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.).

833

agreement of the parties be set aside for the site of the negotiations. 76 The belligerents may
agree that no combat activity will take place within or over the area, and that forces will be
detailed to maintain the security of the area. 77 The area designated as neutral on maps
interchanged by representatives of the belligerents may be marked with searchlights, balloons,
and other devices to ensure that it will not be attacked. 78
Other appropriate measures may also be agreed upon to facilitate negotiations. For
example, special signals that the parlementaires party should give or routes that the
parlementaires party must take may be agreed upon to help identify the parlementaires party to
the opposing forces.
12.6 MILITARY PASSPORTS, SAFE-CONDUCTS, AND SAFEGUARDS
Persons within an area occupied by a belligerent may be protected from molestation or
interference through military passports, safe-conducts, and safeguards. These devices are a
matter of international law only when granted or posted by arrangement with the enemy or with a
neutral State. 79
12.6.1 Military Passports, Safe-Conducts, and Safeguards Notes on Terminology. The
terms pass or permit may be used instead of passport. Pass has sometimes been used for a
general permission to do certain things, while permit has sometimes been used like safe-conduct,
to signify permission to do a particular thing. 80

76

1956 FM 27-10 (Change No. 1 1976) 468 (If it is anticipated that negotiations between belligerents may be
prolonged, a neutralized area may by agreement of the parties be set aside for the site of the negotiations.). For
example, Howard S. Levie, How it All Started and How it Ended: A Legal Study of the Korean War, 35 AKRON
LAW REVIEW 205, 223 (2002) (Negotiations for an armistice began at Kaesong on July 10, 1951. Shortly
thereafter, the negotiations were moved to Panmunjom at the insistence of the UNC because Kaesong, which had
been between the two lines at the time of the negotiations of the liaison officers, had been occupied by the
Communists and they presumed to dictate who could enter the area, while Panmunjom was located in a zone
between territories occupied by the two sides. It was declared a neutral zone as were Kaesong (the Communist
Armistice Delegation headquarters), Munsan-ni (the UNC Armistice Delegation headquarters), and the roads
leading from each Delegation headquarters to Panmunjom.).
77

1956 FM 27-10 (Change No. 1 1976) 468 (The belligerents may agree that no combat activity will take place
within or over the area and that forces will be detailed to maintain the security of the area.).
78

1956 FM 27-10 (Change No. 1 1976) 468 (The area designated as neutral on maps interchanged by
representatives of the belligerents may be marked with searchlights, balloons, and other devices to insure that it will
not be attacked.).
79

1956 FM 27-10 (Change No. 1 1976) 454 (Persons within an area occupied by a belligerent may be protected
from molestation or interference through military passports, safe-conducts, and safeguards. These devices are a
matter of international law only when granted or posted by arrangement with the enemy.); 1958 UK MANUAL 495
(Safeguards, like passports and safe-conducts, fall within the scope of international law only when posted by
arrangement with the enemy.).
80

1958 UK MANUAL 490 (The expressions pass and permit have in recent years been employed in the place of
the older terms passport and safe-conduct, with, as a rule, the same distinction, although pass has sometimes
meant a general permission to do certain things, while permit has been confined to permission to do a particular
act.).

834

The terms military passport and safe-conduct have to some degree been used
interchangeably, but military passport generally has been used in a broader sense than safeconduct. 81
Ultimately, however, the purpose of the document will be more important than the
nomenclature in deciding the nature of the document issued. 82
12.6.2 Military Passport. A military passport is a document issued by order of a
commander of belligerent forces, authorizing a person or persons named therein residing or
sojourning within territory occupied by such forces to travel unmolested within such territory,
with or without permission to pass, or to pass and return by designated routes through the lines,
subject to such further conditions and limitations as the commander may prescribe. 83
Unlike a passport for peacetime travel, such as a passport issued by the U.S. State
Department, a military passport would be issued under a commanders authority to regulate
commerce and travel within territory controlled by his or her forces. 84
12.6.3 Safe Conduct. Documents like passports, issued by the same authority and for
similar purposes to persons residing or traveling outside of the occupied areas who desire to
enter and remain within or pass through such areas, are called safe-conducts. 85 Similar
documents issued by the same authority to persons residing within or without the occupied areas
to permit them to carry specified goods to or from designated places within those areas, and to
engage in trade otherwise forbidden by the general rule of non-intercourse, are also called safeconducts. 86 Safe-conducts for goods in which the grantee is given a continuing right for a
81

SPAIGHT WAR RIGHTS ON LAND 230 (A safe-conduct or passport is a written authority issued by a
commander to one or more individuals, allowing him or them to pass through districts occupied by his forces. The
terms appear to be convertible, though some would make the passport confer a more extended liberty of movement
than the safe-conduct, which they would confine to an authority to come to a specified place for a specified
object.).

82

2004 UK MANUAL 10.35.1 (Arrangements are sometimes made between a military commander and an
individual national or group of nationals belonging to the adverse party or to a neutral state. Such arrangements may
be in the form of passports or safe conducts. Nomenclature is not significant in deciding the nature of the document
issued. In fact, occasionally, the term pass or permit has been used. The decisive factor is the purpose for which
the document has been issued, and not its terminology.).
83

1956 FM 27-10 (Change No. 1 1976) 455 (A military passport is a document issued by order of a commander
of belligerent forces, authorizing a person or persons named therein, residing or sojourning within territory occupied
by such forces, to travel unmolested within such territory, with or without permission to pass, or to pass and return,
by designated routes, through the lines, subject to such further conditions and limitations as the commander may
prescribe.).
84

Refer to 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations);
11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily).
85

1956 FM 27-10 (Change No. 1 1976) 456 (Documents like passports, issued by the same authority and for
similar purposes, to persons residing or sojourning outside of the occupied areas, who desire to enter and remain
within or pass through such areas, are called safe-conducts.).
86

1956 FM 27-10 (Change No. 1 1976) 456 (Similar documents, issued by the same authority, to persons residing
within or without the occupied areas, to permit them to carry specified goods to or from designated places within
those areas, and to engage in trade otherwise forbidden by the general rule of nonintercourse, are also called safeconducts.).

835

prescribed period, or until further orders, to engage in the specified trade, are sometimes called
licenses to trade. 87
12.6.3.1 Safe-Conduct Pass for Ambassadors and Diplomatic Agents of Neutral
Governments Accredited to the Enemy. Ambassadors and other diplomatic agents of neutral
governments accredited to the opposing party to the conflict may receive a safe-conduct pass
through territory under the opposing forces control, unless there are military or other security
reasons to the contrary, including the safety of the personnel in question, and unless they may
reach their destination conveniently by another route. 88 There is no international law
requirement, however, for issuing such a safe-conduct pass; such passes usually would be
granted by national-level authorities and not subordinate officers. 89
12.6.3.2 Licenses to Trade. Licenses to trade must, as a general rule, emanate
from the supreme authority of the State. 90 In an international armed conflict, a State controlling
territory of the enemy may grant licenses to trade that relax its prohibitions on trading with the
enemy. 91
Licenses to trade issued by military authorities may be either general or special. A
general license generally or partially relaxes the exercise of the rights of war in regard to trade in
relation to any community or individuals liable to be affected by their operation. 92 A special
license is one given to individuals for a particular voyage or journey for the importation or
exportation of particular goods. 93

87

1956 FM 27-10 (Change No. 1 1976) 456 (Safe-conducts for goods in which the grantee is given a continuing
right for a prescribed period, or until further orders, to engage in the specified trade, are sometimes called licenses to
trade.); 1958 UK MANUAL 489 (A safe-conduct may, however, also be given for goods, and it then comprises
permission for such good to be carried unmolested from or to a certain place, for instance from or into a besieged
town.).
88

1956 FM 27-10 (Change No. 1 1976) 456 (Ambassadors and other diplomatic agents of neutral powers,
accredited to the enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there
are military reasons to the contrary and unless they may reach the place of their destination conveniently by another
route.); LIEBER CODE art. 87 (Ambassadors, and all other diplomatic agents of neutral powers, accredited to the
enemy, may receive safe-conducts through the territories occupied by the belligerents, unless there are military
reasons to the contrary, and unless they may reach the place of their destination conveniently by another route.).
89

1956 FM 27-10 (Change No. 1 1976) 456 (There is, however, no legal requirement that such safe-conducts be
issued. Safe-conducts of this nature are usually given by the supreme authority of the State and not by subordinate
officers.); LIEBER CODE art. 87 (It implies no international affront if the safe-conduct is declined. Such passes are
usually given by the supreme authority of the State, and not by subordinate officers.).
90

1914 RULES OF LAND WARFARE 281 note 1 (Licenses to trade must, as a general rule, emanate from the
supreme authority of the State.).
91

Refer to 12.1.1 (Traditional Rule of Non-Intercourse During War).

92

1914 RULES OF LAND WARFARE 281 (A general license relaxes the exercise of the rights of war, generally or
partially, in relation to any community or individuals liable to be affected by their operation.).
93

1914 RULES OF LAND WARFARE 281 (A special license is one given to individuals for a particular voyage or
journey for the importation or exportation of particular goods.).

836

12.6.3.3 Safe-Conducts Contemplated by the 1949 Geneva Conventions. Certain

safe-conduct protection may be granted by special agreements contemplated in the 1949 Geneva
Conventions. Such agreements include:

agreements for the removal and passage of certain personnel, such as vulnerable civilians,
from besieged areas; 94

agreements for the passage of consignments; 95

agreements for the removal or transport of the wounded and sick; 96

agreements for the passage of medical aircraft for the transport of the military or civilian
wounded and sick; 97

agreements for the safe passage of chartered medical transport ships; 98 and

agreements for the special transport of relief shipments for POWs or civilian internees. 99

12.6.4 Safeguard. A safeguard may refer to a detachment of forces posted for the
protection of, or a written instrument affording protection by a belligerent to, enemy or neutral
persons or property.
A safeguard falls within the law of war, however, only when granted and posted by
arrangement with the enemy or a neutral. For example, guards or written orders posted by a
belligerent for the protection of its own personnel or property would not be governed by the law
of war. 100
The effect of a safeguard is to pledge the honor of the nation that the person or property
will be respected by its armed forces. 101 It does not commit the government to its protection or
defense against attacks by enemy armed forces or other hostile elements.
94

Refer to 5.19.2 (Removal and Passage of Certain Personnel Vulnerable Civilians, Diplomatic and Consular
Personnel, the Wounded and Sick, and Medical Personnel).
95

Refer to 5.19.3 (Passage of Relief Consignments).

96

Refer to 7.4.3.1 (Armistices and Local Arrangements to Permit the Removal, Exchange, or Transport of the
Wounded).
97

Refer to 7.14 (Military Medical Aircraft); 7.19 (Civilian Medical Aircraft).

98

Refer to 7.13 (Chartered Medical Transport Ships).

99

Refer to 9.20.5 (Special Means of Transport of Shipments to POWs); 10.23.5 (Special Means of Transport of
Shipments to Internees).
100

MANUAL FOR COURTS-MARTIAL IV-39 (26.c.(1)) (2012) (A safeguard is not a device adopted by a belligerent
to protect its own property or nationals or to ensure order within its own forces, even if those forces are in a theater
of combat operations, and the posting of guards or of off-limits signs does not establish a safeguard unless a
commander takes those actions to protect enemy or neutral persons or property.).
101

1956 FM 27-10 (Change No. 1 1976) 457 (The effect of a safeguard is to pledge the honor of the nation that
the person or property shall be respected by the national armed forces.).

837

Safeguards have been used to protect cultural property or other civilian property or
personnel meriting special protection. 102
12.6.4.1 Personnel Serving as a Safeguard. A safeguard is a detachment, guard,
or detail posted by a commander for the protection of persons, places, or property of the enemy
or of a neutral. 103
Combatants serving as safeguards occupy a protected status. 104 They may not be
attacked, and it is customary to send them back, together with their equipment and arms, to their
own armed forces when the locality is occupied by the enemy and as soon as military exigencies
permit. 105
12.6.4.2 Written Safeguard. The term safeguard also refers to a written order left
by a commander with an enemy subject, or posted upon enemy property, for the protection of
that person or property. 106 It is usually directed to the succeeding commander and requests a
grant of protection. 107
12.6.4.3 Uniform Code of Military Justice Offense of Forcing a Safeguard. The
violation of a safeguard is a serious violation of the law of war. 108 The Uniform Code of
Military Justice makes forcing a safeguard punishable. 109 Forcing a safeguard means to
perform an act or acts in violation of the protection of the safeguard. 110

102

For example, SPAIGHT, WAR RIGHTS ON LAND 231 (The object of a safeguard is generally to protect museums,
historic monuments or the like; occasionally to show respect for a distinguished enemy, as in the case of the
safeguard which McClellan placed over Mrs. R. E. Lees residence, White House, Virginia, in 1862. When allies
invaded France in 1814, the Emperor Alexander of Russia honoured himself and Poland by his graceful act in
assigning a guard of honour of Polish soldiers to protect the house of Kosciusko -- then living, almost as a peasant,
near Troyes -- from pillage and contribution.).
103

1956 FM 27-10 (Change No. 1 1976) 457 (A safeguard is a detachment, guard, or detail posted by a
commander for the protection of persons, places, or property of the enemy, or of a neutral.).
104

1956 FM 27-10 (Change No. 1 1976) 457 (Soldiers on duty as safeguards occupy a protected status.).

105

1956 FM 27-10 (Change No. 1 1976) 457 (They may not be attacked, and it is customary to send them back,
together with their equipment and arms, to their own army when the locality is occupied by the enemy and as soon
as military exigencies permit.).
106

1956 FM 27-10 (Change No. 1 1976) 457 (The term also includes a written order left by a commander with an
enemy subject or posted upon enemy property for the protection of the individual or property concerned.).
107

1956 FM 27-10 (Change No. 1 1976) 457 (It is usually directed to the succeeding commander and requests the
grant of protection.).
108

1956 FM 27-10 (Change No. 1 1976) 457 (The violation of a safeguard is a grave violation of the law of war
and, if committed by a person subject to the Uniform Code of Military Justice, is punishable under Article 102
thereof with death or such other punishment as a court-martial may direct.).
109

See 10 U.S.C. 902 (Any person subject to this chapter who forces a safeguard shall suffer death or such other
punishment as a court-martial may direct.).

110

MANUAL FOR COURTS-MARTIAL IV-39 (26.c.(2)) (2012) (Forcing a safeguard means to perform an act or acts
in violation of the protection of the safeguard.).

838

12.6.5 Revocation of Passports, Safe-Conducts, and Similar Documents. In general,

passports, as well as safe-conducts, may be revoked for good reasons of military expediency by
the person who issued them or that persons superior officer. Revocation must never be used as
a means of detaining the holder, who is always allowed to withdraw in safety. 111
In addition, if the holder commits any wrongful act, such as using the opportunity given
by a passport or safe-conduct to obtain military information or if the holder exceeds its terms, the
privilege may be withdrawn. 112
12.7 CARTELS
In its narrower sense, a cartel is an agreement entered into by opposing belligerents for
the exchange of POWs. 113 In its broader sense, it is any convention concluded between
belligerents for the purpose of arranging or regulating certain kinds of non-hostile intercourse
that would otherwise be prohibited by reason of the existence of the armed conflict (e.g., postal
communication or trade in certain goods or commodities). 114
Both parties to a cartel are honor bound to observe its provisions scrupulously. A cartel
is voidable by a party upon definite proof that it has been intentionally violated in an important
particular by the other party. 115
12.8 CAPITULATIONS NEGOTIATED INSTRUMENTS OF SURRENDER
12.8.1 Definition of Capitulation. A capitulation is an agreement (sometimes with certain
conditions) entered into between commanders of belligerent forces for the surrender of a body of
forces, a fortress, or other defended locality, or of a district of the theater of operations. 116 For
111

1958 UK MANUAL 493 (Passports, as well as safe-conducts, may be revoked for good reasons of military
expediency by the person who issued them or his superior officer. Until revoked, however, they are binding not
only upon the person who granted them, but also upon his successors. The reasons for revocation need not be given,
but revocation must never be used as a means of detaining the holder, who is always allowed to withdraw in safety.
Such passports and safe-conducts as have been granted only for a limited time cease to be valid with the expiration
of the period designated.).
112

1958 UK MANUAL 494 (If the holder commits any wrongful act, such as using the opportunity given by a
passport or safe-conduct to obtain military information or if he exceeds its terms, the privilege may be withdrawn.).

113

Refer to 9.35.1 (Exchange of POWs During Hostilities Through Cartel Agreements).

114

1956 FM 27-10 (Change No. 1 1976) 469 (In its narrower sense, a cartel is an agreement entered into by
belligerents for the exchange of prisoners of war. In its broader sense, it is any convention concluded between
belligerents for the purpose of arranging or regulating certain kinds of nonhostile intercourse otherwise prohibited
by reason of the existence of the war.).
115

1956 FM 27-10 (Change No. 1 1976) 469 (Both parties to a cartel are in honor bound to observe its provisions
with the most scrupulous care, but it is voidable by either party upon definite proof that it has been intentionally
violated in an important particular by the other party.).
116

1956 FM 27-10 (Change No. 1 1976) 470 (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.); 1958 UK MANUAL 462 (Capitulations are agreements entered into between the
commanders of armed forces or belligerents concerning the terms of surrender of a body of troops, of a defended
town or place, or of a particular district of the theatre of war. Surrenders of territory are sometimes designated as

839

example, a capitulation agreement could involve the surrender of a small unit, such as a squad,
platoon, company, or battalion, or the surrender of larger forces, such as a division or corps. 117
The surrender of military forces also may be arranged between belligerents at national
levels without the involvement of military commanders, and possibly through third parties. A
capitulation agreement may be negotiated between opposing military forces in local
implementation of a surrender negotiated at national levels.
12.8.1.1 Capitulation Compared to Armistice. A capitulation surrenders the
capitulating unit, while an armistice suspends fighting between opposing forces.
12.8.1.2 Capitulation Compared to Unconditional Surrender. A capitulation is a
surrender pursuant to an agreement. A surrender may be effected without resort to a capitulation
agreement. 118 For example, individuals or units may surrender themselves unconditionally to the
opposite side without a specific capitulation agreement. 119
On the other hand, an unconditional surrender may be effected through a capitulation
instrument. 120 Such an instrument would lack any conditions on the surrender, but may specify
the way in which the surrender is to be implemented or may clarify for all concerned that the
surrender is to be conducted on an unconditional basis.
12.8.2 Authority of Commanders to Conclude Capitulation Agreements. Commanders
are generally presumed to have the authority to conclude capitulation agreements with respect to
forces under their command and areas under their control. 121 For example, if a commander of
military forces concludes that continued fighting has become impossible and is unable to
evacuations.); SPAIGHT, WAR RIGHTS ON LAND 249 (A capitulation is a military convention which puts an end,
with or without conditions, to the resistance of a body of troops shut up in a fortress or surrounded in the field.).
117

For example, Captain M. Scott Holcomb, View from the Legal Frontlines, 4 CHICAGO JOURNAL OF
INTERNATIONAL LAW 561, 568 (2003) (As of this writing, at the end of April 2003, only a few capitulation
agreements have been signed. All of them were entered into after combat began, instead of before. Most
noteworthy, Colonel Curtis Potts, Commander of the Fourth Brigade of the Third Infantry Division, entered into a
capitulation agreement with Iraqi General Mohamad Jarawi for the surrender of the Iraqi Armys Anbar sector
command, which encompassed sixteen thousand soldiers.).
118

1956 FM 27-10 (Change No. 1 1976) 470 (A surrender may be effected without resort to a capitulation.).

119

1956 FM 27-10 (Change No. 1 1976) 478 (An unconditional surrender is one in which a body of troops gives
itself up to its enemy without condition. It need not be effected on the basis of an instrument signed by both parties.
Subject to the restrictions of the law of war, the surrendered troops are governed by the directions of the State to
which they surrender.).
120

For example, Japan, Instrument of Surrender, Sept. 2, 1945, 59 STAT. 1733, 1734 (We hereby proclaim the
unconditional surrender to the Allied Powers of the Japanese Imperial General Headquarters and of all Japanese
armed forces and all armed forces under Japanese control wherever situated.); German High Command, Act of
Military Surrender, May 7, 1945, 59 STAT. 1857, 1858 (1. We the undersigned, acting by authority of the German
High Command, hereby surrender unconditionally to the Supreme Commander, Allied Expeditionary Force and
simultaneously to the Soviet High Command all forces on land, sea, and in the air who are at this date under German
control.).
121

1956 FM 27-10 (Change No. 1 1976) 472 (Subject to the limitations hereinafter indicated, the commander of
troops is presumed to be duly authorized to enter into capitulations.).

840

communicate with his or her superiors, under the law of war he or she may assume that he or she
has authority to surrender his or her forces or position. 122
However, a commanding officers powers generally do not extend beyond the forces and
territory under his or her command. 123 Thus, a commander may not surrender forces that are not
under his or her command. Similarly, unless so authorized by his or her government, a
commander lacks the authority to bind his or her government to a permanent cession of the place
or places under his or her command, to surrender sovereignty over territory, or to agree to other
terms of a political nature or such as will take effect after the termination of hostilities. 124
However, capitulation agreements that have been concluded by political authorities may include
such terms. 125
A State is not bound by the terms of a capitulation agreement that it has not authorized its
commanders to conclude and may repudiate such terms. 126 For example, a State would not be
bound to honor political conditions accepted by a capitulating commander or by a commander
accepting capitulation, if those commanders lack such authority. 127
12.8.2.1 Surrenders Contrary to Domestic Law or Superior Orders. The fact that
a commander surrenders in violation of orders or the law of his or her own State does not impair

122

1956 FM 27-10 (Change No. 1 1976) 472 (In the case of a commander of a military force of the United States,
if continued battle has become impossible and he cannot communicate with his superiors, these facts will constitute
proper authority to surrender.).
123

1956 FM 27-10 (Change No. 1 1976) 472 (A commanding officers powers do not extend beyond the forces
and territory under his command.); 1958 UK MANUAL 466 (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 forces.).
124

1956 FM 27-10 (Change No. 1 1976) 472 (Unless so authorized by his government, he does not possess power
to bind his government to a permanent cession of the place or places under his command, or to any surrender of
sovereignty over territory, or to any cessation of hostilities in a district beyond his command, or to agree to terms of
a political nature or such as will take effect after the termination of hostilities.); Trial of Hans Albin Rauter,
Judgment, XIV U.N. LAW REPORTS 89, 125 (Netherlands Special Court in S-Gravenhage (The Hague), May 4,
1948) (According to international law a capitulation treaty is a pact between commanders of belligerent forces for
the surrender of certain troops or certain parts of the country, towns or fortresses, and as such must be scrupulously
fulfilled; the commander who concludes such a pact cannot, however, be considered empowered to bind his
government to a permanent cession of territory, to a cessation of hostilities in territories which do not come under
his command or, in general, to provisions of a political nature; such provisions are binding in a capitulation treaty
only if they are ratified by the governments of both belligerents.).
125

1956 FM 27-10 (Change No. 1 1976) 473 (The surrender of a place or force may also be arranged by the
political authorities of the belligerents without the intervention of the military authorities. In this case the
capitulation may contain other than military stipulations.).
126

1958 UK MANUAL 467 (Similarly, the competence of a commander to grant conditions of capitulation is
limited to those the fulfilment of which depends entirely upon the forces under his command. If he agrees, without
the instruction of his government, to conditions the granting of which is not implied in his powers, or the fulfilment
of which depends upon forces other than his own, and upon superior officers, the conditions may be repudiated.).

127
WINTHROP, MILITARY LAW & PRECEDENTS 787 (A capitulation is of course subject to be disapproved and
annulled by the Government of either commander. Thus the Sherman-Johnston capitulation of April, 1865, was
repudiated by the Government at Washington because of its assuming to deal with political issues.).

841

the validity of the surrender. 128 Commanders who surrender in violation of orders or the law of
their own State may be punished by their State.
Under the Code of Conduct for U.S. armed forces, a commander must never surrender
the members of his or her command while they still have the means to resist. 129 Under the
Uniform Code of Military Justice, shameful surrenders are punishable. In addition, compelling
or attempting to compel a commander to surrender or striking colors or flag to an enemy without
proper authority is punishable. 130
12.8.3 Rules of Military Honor. Capitulations agreed upon between belligerents must
take into account the rules of military honor. 131
Conditions involving unnecessary disgrace or ignominy should not be insisted upon. 132
Capitulations may include the right of the capitulating forces to surrender with colors displayed
or other indications of professional respect for the capitulating forces. 133 For example, it may be
appropriate to allow surrendering officers to keep their side arms. 134
Even if the capitulation does not explicitly have such provisions, the capitulation
agreement should be executed with honor and respect for the adversary. Treating the adversary
honorably diminishes psychological stigma from capitulation and thereby provides an incentive
for the adversary to capitulate rather than fight on without any chance of success.
12.8.4 Form of Capitulation Agreement or Instrument. There is no specified form for
capitulation instruments. They may be concluded either orally or in writing, but in order to avoid
disputes, they should be reduced to writing. The agreement should contain in precise terms
every condition to be observed on either side, excepting such conditions as are clearly imposed
by the law of war. Details of time and procedure should be prescribed in exact and unequivocal
language. Even in case of an unconditional surrender, when the terms are dictated by the victor,
they should nevertheless be embodied in a written capitulation as soon as practicable. 135
128

1956 FM 27-10 (Change No. 1 1976) 472 (The fact that any commander surrenders in violation of orders or the
law of his own State does not impair the validity of the surrender.).
129

Refer to 9.39.1.2 (Code of Conduct Article II).

130

Refer to 9.39.1.2 (Code of Conduct Article II).

131

HAGUE IV REG. art. 35 (Capitulations agreed upon between the contracting parties must take into account the
rules of military honour.).
132

WINTHROP, MILITARY LAW & PRECEDENTS 786 (Capitulation. This is an agreement for the surrender of an
army, or of a fortified place, of which the terms are settled by the belligerent commanders. In the Project of the
Brussels Conference it is prescribed that these conditions should not be contrary to military honor. That is to say,
conditions involving unnecessary disgrace or ignominy should not be insisted upon.).
133

1958 UK MANUAL 475 (The expression with the honors of war, which is sometimes used in capitulations, is
usually construed to include the right to march out with colors displayed, bayonets fixed, etc., but the details of such
arrangements should be precisely stated in the articles [of capitulation].).

134

Refer to 12.9.2.2 (Disarmament of Surrendered Forces).

135

1956 FM 27-10 (Change No. 1 1976) 474 (There is no specified form for capitulations. They may be
concluded either orally or in writing, but in order to avoid disputes, they should be reduced to writing. The

842

12.8.5 General Effect of Capitulation. The general effect of concluding a capitulation

agreement is that of an unconditional surrender. In other words, absent specific terms in the
capitulation agreement to the contrary, the capitulation agreement should be understood to create
the effect of an unconditional surrender by the capitulating party. 136
The capitulating party must generally cease operations and maintain the military status
quo at the time in which the capitulation becomes effective. 137 For example, the capitulating
forces must not engage in offensive operations against opposing forces. 138 Similarly, although
forces may destroy their own weapons and intelligence information to prevent them from falling
into the hands of the enemy before they capitulate, after the capitulation is effective, the
capitulating forces must abstain from all destruction and damage to their own facilities and
equipment, unless expressly permitted by the capitulation agreement. 139 The capturing side is
free to confiscate as war booty or, at its discretion, destroy the weapons, ammunition, and
military equipment of the capitulating side. 140
12.9 CAPITULATIONS SUBJECTS USUALLY ADDRESSED
In general, a capitulation agreement is understood to have the effect of an unconditional
surrender under the law of war. However, specific topics may be addressed in the capitulation
agreement that attach conditions to the surrender or specify the way in which the surrender is to
be effected.
12.9.1 Scope of Surrendered Forces and Territory and Time of Surrender. The
capitulation agreement may specify the force or territory that is surrendered and the exact time
when the surrender is to take effect. If a place or area is surrendered, provisions relative to the
withdrawal of the defenders from it and the entering into possession of it by the victorious forces
may also be specified in the agreement.

agreement should contain in precise terms every condition to be observed on either side, excepting such conditions
as are clearly imposed by the laws of war. Details of time and procedure should be prescribed in the most exact and
unequivocal language. Even in case of an unconditional surrender, when the terms are dictated by the victor, they
should nevertheless be embodied in a written capitulation as soon as practicable.).
136

Refer to 5.10.3 (Persons Who Have Surrendered).

137

SPAIGHT, WAR RIGHTS ON LAND 253-54 (The same principles which apply to the matriel of a fortress which
has capitulated are applicable also in the case of the personnel. Once the capitulation is signed, the position is
stereotyped and fixed; the status quo of the moment of signature must be honourably maintained. The victorious
belligerent is justified in expecting that not only the matriel but the personnel of the capitulating force shall be
handed over to him in accordance with the terms of the convention.).
138

Refer to 5.10.3.2 (Clear and Unconditional).

139

SPAIGHT, WAR RIGHTS ON LAND 251-52 (A commander who has brought a fortress to the point of capitulating,
may make the non-destruction of property during the negotiations a condition for granting better terms, and it may
suit the besiegeds interests to meet him in the matter. In the absence of such a special arrangement, the
commandant has a perfect right to dispose as he chooses of his matriel up to the moment of the signing of the act of
capitulation.).
140

Refer to 5.17.3 (Enemy Movable Property on the Battlefield (War Booty)).

843

A commanders competence to capitulate is limited to forces under his or her

command. 141 To avoid misunderstandings, capitulation should state the forces to be surrendered
and to what extent detached forces and personnel are included in the surrender of the main
body. 142
12.9.2 Disposition of Surrendered Forces. The capitulation instrument may specify the
movements and administration of the surrendered forces after the surrender.
In general, surrendering military forces and others entitled to POW status who fall into
the power of the enemy during international armed conflict become POWs under the GPW.
Similarly, the disposition of surrendered medical personnel and the wounded and sick belonging
to the surrendered party would be addressed by the GWS and GWS-Sea. Insofar as matters are
addressed by those treaties, there is little need for similar provisions in a capitulation instrument.
However, special circumstances, such as inability of the victor to guard, evacuate, and
maintain large numbers of POWs or to occupy the area in which enemy military forces are
present, may justify the victorious commander in allowing the defeated force to remain in its
present positions, to withdraw, or to disperse after having been disarmed and having given their
paroles, provided that the giving of paroles is not forbidden by the laws of their own country and
that they are willing to give their paroles. 143
12.9.2.1 Orders Given by the Victor. It is normally stipulated that the orders of
the victorious commander will be scrupulously carried out by the surrendered forces and that
those who fail to comply with such orders or with the terms of the surrender itself may be
punished. 144
12.9.2.2 Disarmament of Surrendered Forces. Normally provisions are included
to govern the disposition of enemy arms, equipment, and other property in the hands of the force
141

Refer to 12.8.2 (Authority of Commanders to Conclude Capitulation Agreements).

142

1958 UK MANUAL 466 (To avoid misunderstandings, capitulations should invariably state to what extent
detached forces and outlying defences are included in the surrender of the main body.).
143

1956 FM 27-10 (Change No. 1 1976) 475b (However, special circumstances, such as inability of the victor to
guard, evacuate, and maintain large numbers of prisoners of war or to occupy the area in which enemy military
forces are present, may justify the victorious commander in allowing the defeated force to remain in its present
positions, to withdraw, or to disperse after having been disarmed and having given their paroles, provided that the
giving of paroles is not forbidden by the laws of their own country and that they are willing to give their paroles (see
par. 185).).
144

1956 FM 27-10 (Change No. 1 1976) 475j (Orders given by the victor. It is normally stipulated that the orders
of the victorious commander will be scrupulously carried out by the surrendered forces and that those who fail to
comply with such orders or with the terms of the surrender itself will be severely punished.). For example,
Instrument of Surrender of all German armed forces in Holland, in North West Germany, including all islands, and
in Denmark, May 4, 1945, 3-4, reprinted in The Scuttled U-Boats Case, Trial of Oberleutnant Gerhard Grumpelt,
I U.N. LAW REPORTS 55, 57 (British Military Court Held at Hamburg, Germany, Feb. 12-13, 1946) (3. The German
Command to carry out at once, and without argument or comment, all further orders that will be issued by the Allied
Powers on any subject. 4. Disobedience of orders, or failure to comply with them, will be regarded as a breach of
these surrender terms and will be dealt with by the Allied Powers in accordance with the accepted laws and usages
of war.).

844

that has surrendered. Officers have sometimes been allowed to retain their side arms. 145 In
addition, POWs are allowed to keep certain articles under the GPW. 146
12.9.2.3 Prohibitions on Acts of Destruction by the Surrendered Forces.
Although a capitulation, like an unconditional surrender, generally has the effect of prohibiting
acts of destruction by surrendered forces, the capitulation may also specifically prohibit
destruction by the surrendered forces of their materiel or installations, or communications,
transportation facilities, and other public utilities in the area concerned.
12.9.3 Disposition of Detainees Held by the Surrendered Forces. The disposition of
POWs, civilian internees, and other persons held in the custody of the surrendered forces may be
addressed in a capitulation. 147
12.9.4 Minefields and Other Defensive Measures. The provision of facilities and of
information on such matters as minefields and other defensive measures may be addressed in a
capitulation. 148
12.9.5 Civil Administration of the Area Concerned. The civil administration of the area
concerned, if a place or area is surrendered, may also be addressed in a capitulation.
12.10 CAPITULATIONS VIOLATIONS AND DENUNCIATION
Once capitulation agreements have been made, they must be scrupulously observed by all

parties.

149

12.10.1 Denunciation of Capitulation Agreements Based on Directed Violations. If

violations of a capitulation agreement have been directed by the commander who capitulated or

145

For example, WINTHROP, MILITARY LAW & PRECEDENTS 787 (In the capitulation between Gens. Grant and Lee,
of April, 1865, in providing for the surrender of military property, it is addedThis will not embrace the side arms
of the officers, nor their private horses nor baggage.).

146

Refer to 9.7 (POW Effects and Articles of Personal Use).

147

For example, Japan, Instrument of Surrender, Sept. 2, 1945, 59 STAT. 1733, 1734 (We hereby command the
Japanese Imperial Government and the Japanese Imperial General Headquarters at once to liberate all allied
prisoners of war and civilian internees now under Japanese control and to provide for their protection, care,
maintenance and immediate transportation to places as directed.).
148

For example, Instrument of Surrender of Italy, Sept. 29, 1943, 61 STAT. 2742, 2743-44 (10. The Italian Supreme
Command will make available all information about naval, military and air devices, installations, and defences,
about all transport and inter-communication systems established by Italy or her allies on Italian territory or in the
approaches thereto, about minefields or other obstacles to movement by land, sea or air and such other particulars as
the United Nations may require in connection with the use of Italian bases, or with the operations, security, or
welfare of the United Nations Land, Sea or Air Forces. Italian forces and equipment will be made available as
required by the United Nations for the removal of the above mentioned obstacles.).
149

HAGUE IV REG. art. 35 (Capitulations agreed upon between the contracting parties must take into account the
rules of military honour. Once settled, they must be scrupulously observed by both parties.).

845

by higher authority, the other belligerent may denounce the capitulation and resume hostilities. 150
Like action may also be taken if the capitulation was obtained through a breach of faith. 151
A capitulation may not, however, be denounced because one of the parties has been
induced to agree to it by a means consistent with the law of war, such as a ruse, or by that partys
own incapacity, such as through mistake of fact. 152
12.10.2 Violation of Capitulation Agreements by Individuals. Deliberate violations of
the terms of a capitulation by individuals are punishable as a war crime. 153 For example, a
member of the capitulated force may be punished by his or her State or the enemy State for
carrying out attacks on enemy military equipment or personnel in violation of the terms of the
capitulation agreement. Similarly, destroying ones own military equipment in violation of the
terms of the capitulation agreement would also be punishable. 154
Unwitting violations of a capitulation agreement, however, are not punishable. For
example, individuals who return from a patrol and find their unit to have surrendered and,
lacking knowledge of capitulation, continue to fight, would not be committing a war crime.
12.10.2.1 Violation of Capitulation Agreements and POW Status. Violation of a
capitulation agreement, like other pre-capture law of war violations, is not a basis for denying a
person POW status, if that person otherwise qualifies for POW status under the GPW. 155
12.10.2.2 Violation of Capitulation Agreements by POWs. Members of the armed
forces who have capitulated may become POWs. Violations of the terms of a capitulation
agreement by a POW may also be punishable as misconduct as a POW, either by the Detaining
Power or the State to which the POW belongs when that POW has been repatriated. 156

150

1956 FM 27-10 (Change No. 1 1976) 477 (If the violation is directed by the commander who capitulated or by
higher authority, the other belligerent may denounce the capitulation and resume hostilities.).
151

1956 FM 27-10 (Change No. 1 1976) 477 (Like action may also be taken if the capitulation was obtained
through a breach of faith.).
152

1958 UK MANUAL 484 (A capitulation may be denounced if a party to it formally refuses to execute a clause
which has been agreed upon, and it may be cancelled if it was obtained by a breach of faith. 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.).

153

1956 FM 27-10 (Change No. 1 1976) 477 (Violation of the terms of a capitulation by individuals is punishable
as a war crime.); Johnson v. Eisentrager, 339 U.S. 763, 787 (1950) (Breach of the terms of an act of surrender is
no novelty among war crimes.).
154

For example, The Scuttled U-Boats Case, Trial of Oberleutnant Gerhard Grumpelt, I U.N. LAW REPORTS 55-70
(British Military Court, Hamburg, Germany, Feb. 12-13, 1946) (First Lieutenant Grumpelt was convicted of having
scuttled two U-boats which had been surrendered by the German Command to the Allies in violation of the
Instrument of Surrender of 4th May, 1945.).
155

Refer to 9.26.4 (Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts).

156

Refer to 9.26.1 (POWs Subject to the Laws, Regulations, and Orders in Force in the Armed Forces of the
Detaining Power); 9.22.2 (POWs Status With Respect to Their Armed Forces).

846

12.11 ARMISTICES AND OTHER CEASE-FIRE AGREEMENTS

12.11.1 Definition of Armistice. An armistice may also be described as the cessation of
active hostilities for a period agreed upon by the belligerents. 157 An armistice suspends military
operations by mutual agreement between the belligerent parties. 158
12.11.1.1 Armistice as an Agreement. An armistice is an agreed suspension of
hostilities. For example, a unilateral suspension of operations by one party would not be an
armistice.
12.11.1.2 Armistice as a Suspension of Hostilities and Not a Peace Treaty. 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 to the conflict. 159 War as a legal state of hostilities between
parties may continue, despite the conclusion of an armistice agreement. 160
In some cases, however, armistice agreements may be intended to be a prelude to peace
treaties. 161 In some cases, armistice agreements may persist for a long time. 162
12.11.1.3 Armistice Notes on Terminology. An armistice also has been referred
to as a truce, local truce, ceasefire, cessation of hostilities, and suspension of arms. 163

157

1956 FM 27-10 (Change No. 1 1976) 479 (An armistice (or truce, as it is sometimes called) is the cessation of
active hostilities for a period agreed upon by the belligerents.); LIEBER CODE art. 135 (An armistice is the
cessation of active hostilities for a period agreed between belligerents.).
158

HAGUE IV REG. art. 36 (An armistice suspends military operations by mutual agreement between the belligerent
parties.).

159

1956 FM 27-10 (Change No. 1 1976) 479 (It is not a partial or temporary peace; it is only the suspension of
military operations to the extent agreed upon by the parties.); LIEBER CODE art. 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.).
160

See, e.g., Kahn v. Anderson, 255 U.S. 1, 9 (1921) (That complete peace, in the legal sense, had not come to pass
by the effect of the Armistice and the cessation of hostilities, is not disputable.); Commercial Cable Co. v.
Burleson, 255 F. 99, 104-05 (S.D.N.Y. 1919) (Hand, J.) (It is the treaty which terminates the war. An armistice
effects nothing but a suspension of hostilities; the war still continues. It is true that a war may end by the cessation
of hostilities, or by subjugation; but that is not the normal course, and neither had hostilities ceased, nor had the
enemy been subjugated in the sense in which that term is used.) (citations omitted) reversed on other grounds and
vacated as moot, Commercial Cable Co. v. Burleson, 250 U.S. 360 (1919).
161

For example, Protocol of Agreement Between the United States and Spain, art. V, Aug. 12, 1898, 30 STAT. 1742,
1743 (The United States and Spain will each appoint not more than five commissioners to treat of peace, and the
commissioners so appointed shall meet at Paris not later than October 1, 1898, and proceed to the negotiation and
conclusion of a treaty of peace, which treaty shall be subject to ratification according to the respective constitutional
forms of the two countries.).

162

For example, DEPARTMENT OF STATE, Treaties in Force: A List of Treaties and Other International Agreements
of the United States in Force on January 1, 2013, 411 (2013) (Agreement concerning a military armistice in Korea,
with annex. Signed at Panmunjon July 27, 1953, by the Commander-in-Chief, United Nations Command; the
Supreme Commander of the Korean Peoples Army; and the Commander of the Chinese Peoples Volunteers.
Entered into force July 27, 1953. 4 UST 346; TIAS 2782.).
163

See, e.g., Richard Baxter, Armistices and Other Forms of Suspension of Hostilities, in HUMANIZING THE LAWS OF
WAR: SELECTED WRITINGS OF RICHARD BAXTER 310 (2013) (In military usage, as reflected in particular in

847

Although in some cases distinctions may be drawn between these different terms,
armistice may also be used in a general sense to encompass these terms. 164
12.11.2 Types of Armistice and the Authority to Conclude Armistice Agreements.
Armistice agreements have been categorized based on the degree to which they suspend
hostilities.
An armistice may be general or local. The first suspends the military operations of the
belligerent States everywhere; the second only between certain fractions of the belligerent armies
and within a fixed radius. 165
The degree to which the parties wish to suspend hostilities affects what authorities are
needed to conclude the armistice agreement. An armistice agreement must be concluded by
authorities who are competent to agree to and to enforce its terms. Thus, armistices that include
more substantive and expansive terms must be approved by more senior authorities. For
example, a commander would not have the authority to conclude an armistice agreement that
binds units or areas that are not under his or her command. Similarly, if an armistice contains
political terms, it must be made under authorization from the governments concerned or subject
to approval by them. 166
12.11.2.1 General Armistice. A general armistice suspends all military
operations between opposing forces.
manuals on the law of war, the older expression armistice seems to be used quite generally to describe agreements
which in these days go under the name of cease-fires or truces or suspensions of arms. Very often when we
speak today of cease-fire, our predecessors, at least up to the Second World War, would have been inclined to use
the term general armistice or local armistice. These are largely terminological differences and the employment
of one expression or another does not normally of itself have operative legal consequences.); 1958 UK MANUAL
418 note 1 (Six expressions have in the past been used in the British army to signify a cessation of hostilities
falling short of peace: truce, local truce, armistice, cessation of hostilities (as in the Convention made after Majuba
in 1881), cessation of arms (as in the negotiations preceding the surrender at Saratoga in 1777), and suspension of
arms. Yet they do not appear to have been employed with any exactitude. Moreover, other expressions, such as a
cease fire for three hours, have not been unknown. Neither do other languages follow an exact terminology in the
matter; the Germans speak of Waffenruhe and Waffenstillstand, without distinguishing precisely between them. The
French instructions distinguish between amistices and suspensions darmes. It has been found advisable to follow
the practice of the more authoritative writers in distinguishing three different kinds of armistice as in the text
above.).
164

See, e.g., WALTER G. HERMES, UNITED STATES ARMY IN THE KOREAN WAR: TRUCE TENT AND FIGHTING FRONT
15 footnote 1 (1992) (For literary reasons, the terms armistice, truce, and cease-fire have been used
interchangeably throughout this volume. According to the Office of the Judge Advocate General, truce signifies a
temporary interruption of fighting between local forces for some reason such as the collection of the dead and
wounded. The word armistice has a similar connotation, but is utilized to cover a temporary cessation of hostilities
on a broader scale. Cease-fire applies when all acts of war are halted, bringing about an informal end to the war
and stabilizing the situation until formal negotiations can be completed.).

165

HAGUE IV REG. art. 37 (An armistice may be general or local. The first suspends the military operations of the
belligerent States everywhere; the second only between certain fractions of the belligerent armies and within a fixed
radius.); LIEBER CODE art. 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.).
166

1956 FM 27-10 (Change No. 1 1976) 483 (If an armistice contains political terms, it must be made under
authorization from the governments concerned or subject to approval by them.).

848

General armistices are usually of a combined political and military character. They
usually precede the negotiations for peace, but may be concluded for other purposes. Due to its
political importance and the fact that it would be binding on all of a belligerents forces, a
general armistice is normally negotiated by senior officials and is subject to approval by each
State. 167 For example, an armistice agreement may be negotiated by senior military commanders
and be subject to approval of each State. 168
12.11.2.2 Local or Partial Armistice. A local armistice (also called a partial
armistice) suspends operations between certain portions of the belligerent forces or within a
specified area. 169 In some cases, a local armistice has been distinguished from a suspension of
arms as implicating a large number of forces, a greater geographic area, and broader interests
than the local military requirements that are addressed in a suspension of arms. 170
12.11.2.3 Suspension of Arms. A suspension of arms is a form of local armistice
concluded between commanders of military forces for some local military purpose, such as to
bury the dead, to collect the wounded, to arrange for exchange of detainees, or to enable a
commander to communicate with his or her government or superior officer. 171
Commanders are presumed to have the authority to conclude suspensions of arms for
forces and areas within their control.
12.11.3 Form of Armistice Agreements. No special form for an armistice is prescribed.
If possible, armistice agreements should be reduced to writing to avoid misunderstandings and

167

1956 FM 27-10 (Change No. 1 1976) 483 (General armistices are usually of a combined political and military
character. They usually precede the negotiations for peace, but may be concluded for other purposes. Due to its
political importance, a general armistice is normally concluded by senior military officers or by diplomatic
representatives or other high civilian officials.).
168

For example, Barbara Salazar Torreon, U.S. Periods of War and Dates of Current Conflicts, 5-6 (Congressional
Research Service, Dec. 28, 2012) (Cease-fire terms [of the 1991 Persian Gulf War] negotiated at Safwan, Iraq,
March 1, 1991. Iraq officially accepted cease-fire terms, April 6, 1991. Cease-fire took effect April 11, 1991.); id.
at footnote 8 (This agreement is actually a transcript of the discussion held at Safwan Airfield, Iraq, between
Coalition participants, U.S. Gen. M. Norman Schwarzkopf and Lt. Gen. Khalid of the Joint Arab Forces, and Iraqi
participants, Lt. Gen. Sultan Kasim Ahmad, Chief of Staff of the Ministry of Defense, and Lt. Gen. Sala Abud
Mahmud, III Corps Commander.).
169

1956 FM 27-10 (Change No. 1 1976) 484 (A local armistice suspends operations between certain portions of
the belligerent forces or within a designated district of the theater of operations.).
170

1958 UK MANUAL 425 (It is, however, always a condition of the [partial] armistice that a considerable part of
the forces and of the region of war must be included, and that the cause for which it has been concluded is not only
some pressing local interests, as in the case of a suspension of arms, but one of a more general character, such as a
general exhaustion of the opposing belligerent forces in one part of the theatre of war; the outbreak of a virulent
infectious disease in the opposing camps; or any other cause the requirements of which cannot be satisfied by a mere
suspension of arms, but do not demand a general armistice.).
171

1956 FM 27-10 (Change No. 1 1976) 485 (A suspension of arms is a form of armistice concluded between
commanders of military forces for some local military purpose, such as to bury the dead, to collect the wounded, to
arrange for exchange of prisoners, or to enable a commander to communicate with his government or superior
officer.).

849

for the purpose of reference should differences of opinion arise. Armistice agreements should be
drafted with the greatest possible precision and clarity. 172
12.11.3.1 Languages. Unless agreement is possible for an armistice to be drawn
up in one language, an armistice should be drawn up in the language of each belligerent force,
with each side retaining a copy in its language. Each belligerent should confirm the text in each
version to ensure consistency in each language.
12.11.4 General Effects of an Armistice Agreement. The precise effect of an armistice
agreement may depend on the terms of the agreement. In the absence of specific provisions to
the contrary, the following effects should be understood to result from an armistice agreement.
12.11.4.1 Commencement, Notification, and Effective Time of the Armistice. An
armistice must be notified officially and in good time to the competent authorities and to the
forces. Hostilities are suspended immediately after the notification, or on the date fixed. 173
An armistice for the parties commences at the moment it is signed, in the absence of
specific provision to the contrary. 174 For example, an armistice agreement may specify that
hostilities are suspended for the parties upon receipt of notification by their commanders, rather
than upon signing. 175
Although an armistice is binding upon the belligerents from the time agreed for
commencement of the armistice (or the time of signature if the time of commencement is not
specified), officers of the armed forces are responsible for adhering to the armistice only from
the time when they receive official information of its existence from their State. 176
12.11.4.2 Duration of an Armistice and the Resumption of Operations. If the
duration of an armistice is not prescribed, belligerents may resume operations at any time,
172

1956 FM 27-10 (Change No. 1 1976) 486 (No special form for an armistice is prescribed. It should, if
possible, be reduced to writing, in order to avoid misunderstandings and for the purpose of reference should
differences of opinion arise. It should be drafted with the greatest precision and with absolute clearness.).
173

HAGUE IV REG. art. 38 (An armistice must be notified officially and in good time to the competent authorities
and to the troops. Hostilities are suspended immediately after the notification, or on the date fixed.).
174

1956 FM 27-10 (Change No. 1 1976) 487a (An armistice commences, in the absence of express mention to the
contrary, at the moment it is signed.).
175

For example, 1958 UK MANUAL 485 note 1 (The capitulation of Manila was signed by the local commandersin-chief on 4 August 1898, but a general armistice had been agreed to by the Governments of Spain and the U.S.A.
on 12 August. Notice of this, however, did not reach the Philippines until 16 August, owing to a breakdown in
signal communications. The Spaniards contended that the capitulation had become void, but the United States
Government denied, maintaining that the protocol concerning the armistice had stipulated suspension of hostilities,
not from the date of signature, but from the date of receipt of notification on the part of the respective
commanders.).

176

1956 FM 27-10 (Change No. 1 1976) 491 (An armistice is binding upon the belligerents from the time of the
agreed commencement, but the officers of the armies are responsible only from the time when they receive official
information of its existence.); LIEBER CODE art. 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.).

850

provided always that the enemy is warned within the time agreed upon, in accordance with the
terms of the armistice. 177
If the duration is for a definite period of time and there is no positive agreement to the
contrary, hostilities may be resumed without notice after the prescribed period of time.
12.11.4.3 General Prohibition on Offensive Military Operations. An armistice
agreement generally would be understood to prohibit offensive military operations, such as
conducting attacks or seizing territory. 178 Such acts would be examples of serious violations of
an armistice. 179
12.11.4.4 Armistice No Excuse for Relaxing Vigilance. The existence of an
armistice does not warrant relaxation of vigilance in the service of security and protection, or in
the preparedness of forces for action or exposing positions to the enemy. 180 For example,
belligerents may continue to gather intelligence during an armistice, and may rely on that
intelligence after the armistice has ended. 181
12.11.4.5 Preparations for Resuming Hostilities and Espionage Generally Not
Prohibited. During an armistice, in the absence of stipulations to the contrary, each belligerent is
authorized:

to make movements of forces within its own lines;

177

HAGUE IV REG. art. 36 (If [an armistices] duration is not defined, the belligerent parties may resume operations
at any time, provided always that the enemy is warned within the time agreed upon, in accordance with the terms of
the armistice.); LIEBER CODE art. 137 (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.).
178

See 1958 UK MANUAL 446 (If an armistice is declared without conditions, nothing more than a total cessation
of hostilities along the front of both positions is required.) (emphasis added); LIEBER CODE art. 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.) (emphasis added); 1914 RULES OF LAND WARFARE 261 (What may be done during
an armistice.An armistice need not in terms prohibit actual hostilities [in order to have the effect of prohibiting
actual hostilities]. Anything else [beyond conducting actual hostilities] may be done during an armistice that is not
in express terms prohibited by the agreement.). See also 1914 RULES OF LAND WARFARE 261 note 1 (Actual
hostilities will provide, of course, that firing shall cease; that the belligerents must not gain ground to the front; and,
during siege operations, that the besieger must cease all extension, perfection, or advance of his attack works, as
much so as from attacks by main force. (G.O. 100, 1863, art. 142.)).
179

Refer to 12.13.1.1 (Examples of Serious Violations of an Armistice).

180

1956 FM 27-10 (Change No. 1 1976) 481 (The existence of an armistice does not warrant relaxation of
vigilance in the service of security and protection, or in the preparedness of troops for action, or exposing positions
to the enemy.); 1958 UK MANUAL 460 (The existence of an armistice is no reason for relaxing either vigilance or
the readiness of troops for action, or for exhibiting positions to the enemy which he could not detect during
combat.).
181

For example, 1914 RULES OF LAND WARFARE 273 note 1 (At the second battle of Fredericksburg, May 5,
1863, the Federals discovered the weakness of Gen. Barksdales force during a suspension of hostilities to collect
the wounded after the second repulse. Memoirs, Alexander, p. 351. In the suspension of arms at Wynnes Hill,
during the relief of Ladysmith, many of the burghers stood up and disclosed the position of their trenches, which
until then had not been located by the enemy. South African War, Vol. II, p. 602.).

851

to receive reinforcements;

to construct new fortifications, installations, and bases;

to build and repair transportation and communications facilities;

to seek information about the enemy;

to bring up supplies and equipment; and

in general, to take advantage of the time and means at its disposal to prepare for resuming
hostilities.182

Belligerents are not bound to discontinue espionage during an armistice, but the risks
incurred by spies are the same as at other times. 183 For example, spies may be punished by an
opposing belligerent if captured. 184
12.11.4.6 Armistice and Besieged Localities. Absent express provision in the
armistice agreement to the contrary, an armistice does not give authorities of a besieged place the
right to receive food, water, or other supplies. 185
However, armistice negotiations may be an opportunity for belligerents to attempt to
conclude local agreements for the removal of wounded, sick, infirm and aged persons, children,
and maternity cases, or for the passage of ministers of all religions, medical personnel, and
medical equipment on their way to such areas. 186 In addition, armistice negotiations may be an
opportunity for commanders to seek to make arrangements to permit the free passage of certain
consignments. 187
12.12 ARMISTICES SUBJECTS USUALLY ADDRESSED
The following topics are often addressed in an armistice agreement: (1) the scope of the
armistice, including start time and duration; (2) what military activities are prohibited by the
182

1956 FM 27-10 (Change No. 1 1976) 487e (In the absence of stipulations to the contrary, each belligerent is
authorized to make movements of troops within his own lines, to receive reinforcements, to construct new
fortifications, installations, and bases, to build and repair transportation and communications facilities, to seek
information about the enemy, to bring up supplies and equipment, and, in general, to take advantage of the time and
means at his disposal to prepare for resuming hostilities.).
183

1958 UK MANUAL 449 (Belligerents are not bound to discontinue espionage during an armistice, but the risks
incurred by spies are the same as at other times.).
184

Refer to 4.17 (Spies, Saboteurs, and Other Persons Engaging in Similar Acts Behind Enemy Lines).

185

1958 UK MANUAL 445 (The conclusion of an armistice gives the authorities of a besieged place no right to
introduce provisions either for the garrison or for the civil population. Arrangements may, however, be made to
supply them so that at the end of the armistice the forces are in the same position as at the beginning.).

186

Refer to 5.19.2 (Removal and Passage of Certain Personnel Vulnerable Civilians, Diplomatic and Consular
Personnel, the Wounded and Sick, and Medical Personnel).
187

Refer to 5.19.3 (Passage of Relief Consignments).

852

armistice; (3) the relations between forces and the local populations during the armistice; (4)
humanitarian activities to occur during the armistice; and (5) mechanisms for implementing the
armistice.
Armistice provisions may address a range of political and military issues, provided that
belligerents agree upon the terms and provided that the approving authorities are competent to
address them. 188
12.12.1 Scope of an Armistice, Including Start Time and Duration. The armistice should
specify its scopewhen and where it applies. The start time and duration of an armistice should
be specified as precisely as possible (e.g., date, time, and applicable time zone) to avoid
misunderstanding and an unintentional resumption of hostilities. 189
It may be appropriate for the armistice to specify that it starts at a later time to allow all
forces to receive notification of the armistice before it becomes effective. 190
If the armistice is of an indefinite duration, the terms and manner of giving notice that
that armistice is to be ended (including the length of time between the delivery of the notice and
when combat operations may recommence) should be specified in the armistice agreement. 191
12.12.2 What Military Activities Are Prohibited by an Armistice. Although an armistice
is generally understood to prohibit offensive operations, the armistice agreement may specify the
extent to which offensive operations are prohibited and other military activities that are also
prohibited during the armistice. 192
12.12.3 Relations Between Forces and the Local Population During an Armistice. It rests
with the Contracting Parties to settle, in the terms of the armistice, what intercourse may be held
in the theater of war with the inhabitants of one belligerent State and those of the other. 193

188

1956 FM 27-10 (Change No. 1 1976) 488 (In addition to the provisions set forth in the preceding paragraph,
general armistices normally contain a number of political and military stipulations concerning such matters as the
evacuation of territory; disposition of aircraft and shipping; cooperation in the punishment of war crimes; restitution
of captured or looted property; communications facilities and public utilities; civil administration; displaced persons;
and the dissolution of organizations which may subvert public order.).
189

1956 FM 27-10 (Change No. 1 1976) 487a (The precise date, day, and hour for the suspension of hostilities
should also be stipulated. The effective times may be different in different geographical areas. An armistice
commences, in the absence of express mention to the contrary, at the moment it is signed.).
190

For example, Treaty of Armistice with Germany, Nov. 11, 1918, 2 BEVANS 9 (An armistice has been concluded
on the following conditions: (A) CLAUSES RELATING TO THE WESTERN FRONT I. Cessation of hostilities by land
and in the air six hours after the signing of the armistice.).
191

Refer to 12.11.4.2 (Duration of an Armistice and the Resumption of Operations).

192

Refer to 12.11.4.3 (General Prohibition on Offensive Military Operations).

193

HAGUE IV REG. art. 39 (It rests with the Contracting Parties to settle, in the terms of the armistice, what
communications may be held in the theater of war with the inhabitants of one belligerent State and those of the
other.); LIEBER CODE art. 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.). See also 1914 RULES OF LAND WARFARE 268 note 1 (Of course, what is intended [by Article

853

If nothing is stipulated, intercourse (e.g., communication, movement, or commerce)

remains suspended, as during actual hostilities. 194 For example, absent explicit agreement, a
belligerent retains the right to control all communications or movement of members of the
civilian population between its lines and enemy lines (e.g., denying movement to reduce the risk
of enemy espionage activities, denying trade to avoid strengthening enemy armed forces). 195
The armistice agreement may also stipulate responsibilities of each party for civil
administration of areas under its respective control (e.g., public safety and public health needs,
maintenance of public utilities including communications facilities). The armistice agreement
may also specify the responsibilities of each belligerent for civil administration of neutral areas
or areas where control is shared. 196
12.12.4 Humanitarian Activities to Occur During an Armistice. An armistice agreement
may arrange for a variety of humanitarian activities, such as:

search for and collection of the sick and wounded from the battlefield, by, for example,
medical personnel or authorized civilians (such as non-governmental organizations); and

the provision or transport of medical care or food supplies intended for the civilian
population, including displaced persons.

12.12.4.1 Disposition of Detainees. Because armistice agreements are generally

only a temporary suspension of hostilities and not a complete cessation of active hostilities,
POWs generally need not be repatriated upon the conclusion of an armistice agreement. 197 If it
is desired that detainees, such as POWs, retained personnel, or civilian internees, should be

29 of the Hague IV Regulations] to be regulated is the intercourse of the population of the occupied territory with
the population of the country still held by the enemy (in both cases nationals of the State), and also between each
belligerent force and the inhabitants of the localities held by the other.).
194

1956 FM 27-10 (Change No. 1 1976) 487d (If it is desired to make any change during the armistice in the
relations between the opposing forces and the peaceable inhabitants, this must be accomplished by express
provision. Otherwise these relations remain unchanged, each belligerent continuing to exercise the same rights as
before, including the right to prevent or control all intercourse between the inhabitants within his lines and persons
within the enemy lines.); LIEBER CODE art. 141 (If nothing is stipulated the intercourse remains suspended, as
during actual hostilities.).
195

Refer to 5.19.1.1 (Belligerent Authority to Exercise Control in the Immediate Vicinity of Military Operations);
11.4.1 (Right of the Occupying Power to Govern the Enemy Territory Temporarily).
196

For example, Agreement Between the Governments of the United States of America, the Soviet Union, and the
United Kingdom on the One Hand and the Government of Rumania on the Other Concerning an Armistice, Sept. 12,
1944, 59 STAT. 1712, 1715 (17. Rumanian civil administration is restored in the whole area of Rumania separated
by not less than 50-100 kilometres (depending upon conditions of terrain) from the front line, Rumanian
administrative bodies undertaking to carry out, in the interests of the reestablishment of peace and security,
instructions and orders of the Allied (Soviet) High Command issued by them for the purpose of securing the
execution of these armistice terms.).
197

Refer to 9.37 (Release and Repatriation After Hostilities).

854

released or exchanged, specific provisions in this regard should be made in the armistice
agreement. 198
12.12.5 Mechanisms for Implementing an Armistice. An armistice agreement may
specify mechanisms to help implement it.
12.12.5.1 Neutral Zone Created by an Armistice. An armistice may create a
neutral zone, situated in order to minimize risk of unintentional confrontation between
opposing forces. 199 It may be necessary for forces to withdraw in order to establish the zone. 200
It is usually agreed that these lines are not to be crossed or the neutral zone entered except by
parlementaires or other parties by special agreement for specified purposes, such as to bury the
dead and collect the wounded. 201
12.12.5.2 Consultative Mechanism. The armistice agreement may provide for the
establishment of a commission composed of representatives of the opposing forces to supervise
the implementation of the armistice agreement. 202 The agreement may specify that other
representatives, such as representatives from neutral States or representatives from local
authorities, are included on the commission. 203

198

1956 FM 27-10 (Change No. 1 1976) 487f (If it is desired that prisoners of war and civilian internees should be
released or exchanged, specific provisions in this regard should be made.). For example, Agreement between the
Commander-in-Chief, United Nations Command, on the one hand, and the Supreme Commander of the Korean
Peoples Army and the Commander of the Chinese Peoples Volunteers, on the other hand, Concerning a Military
Armistice in Korea art. 52, Jul. 27, 1953, 29 DEPARTMENT OF STATE BULLETIN 132, 137 (Aug. 3, 1953) (Each side
insures [sic] that it will not employ in acts of war in the Korean conflict any prisoner of war released and repatriated
incident to the coming into effect of this Armistice Agreement.).
199

For example, Protocol of Armistice between Japan and Russia, Sept. 1, 1905, reprinted in I TREATIES AND
AGREEMENTS WITH AND CONCERNING CHINA 1894-1919, 527 (1921) (The undersigned Plenipotentiaries of Japan
and Russia duly authorised to that effect by their Governments have agreed upon the following terms of armistice
between the belligerents, pending the coming into force of the Treaty of Peace: -- 1. A certain distance (zone of
demarcation) shall be fixed between the fronts of the armies of the two Powers in Manchuria as well as in the region
of the Tomamko (Tumen).).
200

For example, Dayton Accords, Annex 1A, art. IV (OHR Doc. 14/12/1995) (The Parties immediately after this
Annex enters into force shall begin promptly and proceed steadily to withdraw all Forces behind a Zone of
Separation which shall be established on either side of the Agreed Cease-Fire Line that represents a clear and
distinct demarcation between any and all opposing Forces.).
201

1956 FM 27-10 (Change No. 1 1976) 487c (Provision may be included for a neutral zone between the two
armies. It is usually agreed that these lines are not to be crossed or the neutral zone entered except by
parlementaires or other parties by special agreement for specified purposes, such as to bury the dead and collect the
wounded.).
202

1956 FM 27-10 (Change No. 1 1976) 487g (It is generally desirable to provide for the establishment of a
commission, composed of representatives of the opposing forces, to supervise the implementation of the armistice
agreement.).
203

For example, Egyptian-Israeli General Armistice Agreement, art. 10(1) Feb. 24, 1949, 42 UNTS 251, 264 (The
execution of the provisions of this Agreement shall be supervised by a Mixed Armistice Commission composed of
seven members, of whom each Party to this Agreement shall designate three, and whose Chairman shall be the
United Nations Chief of Staff of the Truce Supervision Organization or a senior officer from the Observer personnel
of that Organization designated by him following consultation with both Parties to this Agreement.).

855

12.12.5.3 Signals. The belligerents may agree to use certain signals to help
implement the armistice. For example, signals may be agreed upon to indicate the passage of
parlementaires, the start or end of the armistice, or for other reasons.
12.12.5.4 Maps Showing Boundaries or the Location of Forces. An armistice
agreement may also include an exchange of maps or other imagery showing the lines of
opposing forces (or the location of forces) at the time of the start of the armistice. 204 Such maps
may facilitate understanding of applicable boundaries, such as the location of neutral zones, as
well as reduce the risk of unintended confrontation.
12.13 ARMISTICES VIOLATIONS AND DENUNCIATION
An armistice, like other formal arrangements between belligerents, engages the honor of
all parties for the exact and complete fulfillment of every obligation thereby imposed. 205 Serious
violations of the armistice by one of the parties gives an opposing party the right of denouncing
the armistice, and deliberate violations of the armistice by individuals are punishable.
12.13.1 Serious Violations as a Basis for Denouncing an Armistice. Any serious
violation of the armistice by one of the parties gives an opposing belligerent the right of
denouncing the armistice, and even, in cases of urgency, of recommencing hostilities
immediately. 206
12.13.1.1 Examples of Serious Violations of an Armistice. Serious violations of
an armistice include acts in contravention of the terms of the agreement or acts that are wholly
inconsistent with the status of the suspension of hostilities.207 Such acts may include:

conducting attacks against the enemy;

a deliberate advance or construction of works beyond the line agreed upon;

the seizure of any point outside the lines; and

204
For example, Egyptian-Israeli Agreement on Disengagement of Forces in Pursuance of the Geneva Peace
Conference, Annex to Kurt Waldheim, Letter Dated 18 January 1974 From the Secretary-General Addressed to
President of the Security Council, U.N. Doc. S/11198, 2 (Jan. 18, 1974) (A. Egypt and Israel will scrupulously
observe the cease-fire on land, sea and air called for by the United Nations Security Council and will refrain from
the time of the signing of this document from all military or para-military actions against each other. B. The
military forces of Egypt and Israel will be separated in accordance with the following principles: 1. All Egyptian
forces on the east side of the canal will be deployed west of the line designated as line A on the attached map. All
Israeli forces, including those west of the Suez Canal and the Bitter Lakes, will be deployed east of the line
designated as line B on the attached map.).
205

1956 FM 27-10 (Change No. 1 1976) 493 (An armistice, like other formal agreements between belligerents,
engages the honor of both parties for the exact and complete fulfillment of every obligation thereby imposed.).
206

HAGUE IV REG. art. 40 (Any serious violation of the armistice by one of the parties gives the other party the
right of denouncing it, and even, in cases of urgency, of recommencing hostilities immediately.).
207

Cf. WINTHROP, MILITARY LAW & PRECEDENTS 787 (The offence of violation of an armistice may consist in an
act in contravention of the terms of the agreement, or in an act wholly inconsistent with the status of suspension.).

856

the utilization of the occasion to withdraw forces from an unfavorable position

commanded by the enemy. 208

12.13.1.2 Process of Denunciation Warning Requirement. Absent urgent

necessity, a delay should occur between denunciation of the armistice and the resumption of
hostilities.209 This delay allows the denunciation to act as warning and to ensure that the party
recommencing hostilities does not rely on the other partys compliance with the armistice as a
way of facilitating its offensive military operations.
It would be dishonorable and perfidious for either party, without warning, to resume
hostilities during the period of an armistice, with or without a formal denunciation thereof,
except in case of urgency and upon convincing proof of intentional and serious violation of its
terms by the other party. 210
Nevertheless, under Article 40 of the Hague IV Regulations, upon definite proof of such
a violation of an armistice, if the delay incident to formal denunciation and warning seems likely
to give the violator a substantial advantage of any kind, the other party is free to resume
hostilities without warning and with or without a formal denunciation. 211 For example, the law
of war does not prohibit armed forces that reasonably believe an adversary is committing
armistice violations from taking necessary and proportionate action in self-defense immediately
in response.
12.13.1.3 Process of Denunciation Approval of Co-Belligerents Not Required.
A belligerent faced with serious violations of an armistice is not required to obtain the
permission of its co-belligerents, even though those States may be parties to the armistice
agreement, before recommencing hostilities. 212

208

1958 UK MANUAL 456 (A deliberate advance or construction of works beyond the line agreed upon, the
seizure of any point outside the lines, or the utilization of the occasion to withdraw troops from an unfavourable
position commanded by the enemy, or any violation of an express condition would, as a rule, constitute a grave
breach [of an armistice].).

209

1958 UK MANUAL 458 (Unless there be great urgency, there should always be a delay between denunciation of
the armistice and resumption of hostilities.).
210

1956 FM 27-10 (Change No. 1 1976) 493 (It would be an outrageous act of perfidy for either party, without
warning, to resume hostilities during the period of an armistice, with or without a formal denunciation thereof,
except in case of urgency and upon convincing proof of intentional and serious violation of its terms by the other
party.).
211

1956 FM 27-10 (Change No. 1 1976) 493 (Nevertheless, under the article last above quoted, upon definite
proof of such a violation of the armistice, if the delay incident to formal denunciation and warning seems likely to
give the violator a substantial advantage of any kind, the other party is free to resume hostilities without warning and
with or without a formal denunciation.).
212

For example, Jay S. Bybee, Assistant Attorney General, Authority of the President Under Domestic and
International Law to Use Military Force Against Iraq, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 143, 174-75
(Oct. 23, 2002) (The missile strikes in 1993 and 1998 serve as clear examples of the suspension of a cease-fire and
a resumption of hostilities due to serious violations by Iraq. It is our understanding based on information supplied
by the Department of Defense that in neither case did the United States obtain the express agreement of all of the
other members of the Persian Gulf War coalition before suspending the cease-fire and using force.).

857

12.13.2 Violations of an Armistice by Individuals. A violation of the terms of an

armistice by private persons acting on their own initiative only entitles the injured party to
demand the punishment of the offenders or, if necessary, compensation for the losses
sustained. 213
12.13.2.1 Private Persons Defined for the Purposes Article 41 of the Hague IV
Regulations. A private person, in the sense of Article 41 of the Hague IV Regulations, refers to
any person, including a member of the armed forces, who acts on his or her own
responsibility. 214
12.13.2.2 Effect of Violations of an Armistice by Individuals. Deliberate violation
of the terms of an armistice by individuals is punishable as a war crime. Such violations by
individual members of the armed forces or subordinate officers do not justify denunciation of the
armistice unless they are proved to have been committed with the knowledge and actual or tacit
consent of their own government or commander. Consent may be inferred in the event of a
persistent failure to punish such offenders. 215
12.13.2.3 Violation of Armistice Agreements and POW Status. Violations of an
armistice agreement, like other pre-capture law of war violations, are not a basis for denying a
person POW status, if that person otherwise qualifies for POW status under the GPW. 216
12.14 U.N. SECURITY COUNCIL CEASE-FIRES
The U.N. Security Council may call upon or demand that hostilities be ceased. 217 In
addition, the U.N. Security Council may call upon or demand that members of the United

213

HAGUE IV REG. art. 41 (A violation of the terms of the armistice by private persons acting on their own
initiative only entitles the injured party to demand the punishment of the offenders or, if necessary, compensation for
the losses sustained.).
214
1956 FM 27-10 (Change No. 1 1976) 494b (A private individual, in the sense of the foregoing article, refers to
any person, including a member of the armed forces, who acts on his own responsibility.).
215

1956 FM 27-10 (Change No. 1 1976) 494c (Violation of the terms of an armistice by individuals is punishable
as a war crime. Such violations by individual soldiers or subordinate officers do not justify denunciation of the
armistice unless they are proved to have been committed with the knowledge and actual or tacit consent of their own
government or commander. Consent may be inferred in the event of a persistent failure to punish such offenders.).
216

Refer to 9.26.4 (Retention of Benefits of the GPW Even if Prosecuted for Pre-Capture Acts).

217

For example, U.N. SECURITY COUNCIL RESOLUTION 1199, U.N. Doc S/RES/1199, 1 (Sept. 23, 1998) (Acting
under Chapter VII of the Charter of the United Nations, 1. Demands that all parties, groups and individuals
immediately cease hostilities and maintain a ceasefire in Kosovo, Federal Republic of Yugoslavia, which would
enhance the prospects for a meaningful dialogue between the authorities of the Federal Republic of Yugoslavia and
the Kosovo Albanian leadership and reduce the risks of a humanitarian catastrophe;); U.N. SECURITY COUNCIL
RESOLUTION 338, U.N. Doc. S/RES/338 (Oct. 22, 1973) (Calls upon all parties to the present fighting to cease all
firing and terminate all military activity immediately, no later than 12 hours after the moment of the adoption of this
decision, in the positions they now occupy.).

858

Nations conclude cease-fire or armistice agreements. 218 The U.N. Security Council may also
establish a formal cease-fire. 219
Cease-fires established by the U.N. Security Council may be interpreted in accordance
with the general principles of international law governing armistices. 220

218

For example, U.N. SECURITY COUNCIL RESOLUTION 27, U.N. Doc S/RES/27 (Aug. 1, 1947) (The Security
Council, Noting with concern the hostilities in progress between the armed forces of the Netherlands and the
Republic of Indonesia, Calls upon the parties: (a) To cease hostilities forthwith, and (b) To settle their dispute by
arbitration or by other peaceful means and keep the Security Council informed about the progress of the
settlement.).

219

For example, U.N. SECURITY COUNCIL RESOLUTION 687, U.N. Doc S/RES/687 33 (Apr. 3, 1991) (Declares
that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the
above provisions, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with
Kuwait in accordance with resolution 678 (1990);).
220

For example, Jay S. Bybee, Assistant Attorney General, Authority of the President Under Domestic and
International Law to Use Military Force Against Iraq, 26 OPINIONS OF THE OFFICE OF LEGAL COUNSEL 143, 175
(Oct. 23, 2002) (Under general principles of armistice law, therefore, because the initial use of force in response to
the invasion of KuwaitOperation Desert Stormwas authorized under UNSCR 678, subsequent uses of force
against Iraq in response to serious violations of the terms of the cease-fire established by UNSCR 687 would be
authorized as well, provided either that Iraq has been warned, or that such a warning may be avoided because it
would be likely to give Saddam Hussein a substantial advantage.).

859