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He may equally declare beforehand that he will not receive bearers of flags of truce during a certain period. Envoys presenting themselves after such a notification from the side to which it has been given, forfeit their right of inviolability.
The bearer of a flag of truce forfeits his right of inviolability, if it be proved, in a positive and irrefutable manner, that he has taken advantage of his privileged position to incite to or commit an act of treachery.
§194. The conditions of capitulations shall be settled by the contracting parties.
These conditions should not be contrary to military honour.
When once settled by a convention, they should be scrupulously observed by both sides. (Comp. § 131. Conventions for the suspension of hostilities).
§ 195. An armistice suspends warlike operawith regard to tions by a mutual agreement between the belligerents. Should the duration thereof not be fixed, the belligerents may resume operations at any moment; provided, however, that proper warning be given to the enemy, in accordance with the conditions of the armistice.
An armistice may be general or local. The former suspends all warlike operations between the belligerents; the latter only those between certain portions of the belligerent armies, and within a fixed radius.
An armistice should be notified officially and without delay to the competent authorities, and
to the troops. Hostilities are suspended immediately after the notification.
It rests with the contracting parties to define in the clauses of the armistice the relations which shall exist between the populations.
The violation of the armistice by either of the parties gives to the other the right of terminating it (le denoncer).
The violation of the clauses of an armistice by private individuals, on their own personal initiative, only affords the right of demanding the punishment of the guilty persons, and, if there is occasion for it, an indemnity for loses sustained. (Comp. § 131, Conventions for suspension of hostilities).
16°. Retaliation in War.
§196. At the Brussels Conference the Russian Rules for delegates proposed the following rules for Reprisals in war.
1o. Reprisals are admissible in extreme cases only, due regard being paid, as far as shall be possible, to the laws of humanity, when it shall have been unquestionably proved that the laws and customs of war have been violated by the enemy, and that they have had recourse to measures condemned by the Law of Nations.
Retaliation in - war cannot be settled before hand.
2o. The selection of the means and extent of reprisals should be proportionate to the degree of infraction of the law committed by the enemy. Reprisals that are disproportionately severe are contrary to the rules of International Law.
3°. Reprisals shall be allowed only on the authority of the Commander-in-Chief, who shall likewise determine the degree of their severity and their duration.
The Conference, however, felt itself compelled to decline to discuss the subject, and the first
Russian delegate, in agreeing to the suppression of this chapter on reprisals in war, made the following remarks:
"I regret that the uncertainty of silence is to prevail with respect to one of the most bitter necessities of war. If the practice could be suppressed by this reticence, I could but approve of this course. But if it is still to exist, this reticence may, it is to be feared, remove any limits to its exercise. Nevertheless, I believe that the mere mention in the protocol that the committee, after having endeavoured to regulate, to soften, and to restrain reprisals, has shrunk from the task before the general repugnance felt with regard to the subject, will have a most serious moral bearing. It will, perhaps, be the best limitation we have been able to affix to the practice, and especially to the use which may be made of it in future."
Retaliation in war cannot be settled beforehand, as it would indicate the admittance of rules entirely outside the acknowledged usages of war.
"That retaliation in war is sometimes admissible, says Woolsey," all agree: thus if one belligerent treats prisoners of war harshly, the other may do the same; or if one squeezes the expenses of war out of an invaded territory, the other may follow in his steps. It thus becomes a measure of self-protection, and secures the greatest amount of humanity from unfeeling military officers. But there is a limit to the rule. If one general kills in cold blood some hundreds of prisoners who embarrass his motions, his antagonist may not be justified in staining himself by similar crime, nor may he break his word or oath because the other had done so before. The limits
* Protocols of the Conference of Brussel of 1874.
of such retaliation it may be hard to lay down. In the case of Captain Asgill, a prisoner drawn in order to retaliate for the killing of Captain Huddy, Washington had military right on his side. Asgill, however, was finally set free. Yet any act of cruelty to the innocent, any act especially, by which non-combatants are made to feel the stress of war, is what brave men shrink from, although they may feel obliged to threaten it."
17°. Of the sick and wounded. The
wounded to be
§197. The duties of belligerents, with regard The sick and to the treatment of sick and wounded, are regu-treated as agreed lated by the Convention of Geneva, of the 22nd Convention. August, 1864, subject to the modifications which may be introduced in the rules of that Convention.
The Geneva Convention is treated in chapter xxxix, neutral aid in war.
*WOOLSEY. § 132.
The principles of the Law of War considered in the light of civilization.
USAGES OF WAR WITH REGARD TO THE
1o. The Doctrine of Inviolability of the Private Property of Individual Members of the Enemy State on the High Seas.
§ 198. The principles of the Law of War (jus belli), as described above, in paragraphs 155 and 169-175, are established under the influence of the International Spirit of Law (§ 14), but the usages of war (coutumes de la guerre, Kriegsgebräuche), as we have seen from their description in the preceeding chapter, are not always in conformity with the principles of the Law of War, as laid down by human Conscience and Sympathy in their striving to bring the practices of actual warfare up to the acknowledged normal standard of civilization, i.e., to bring about conformity with the existing_International Spirit of Law (Comp. § 179). But there exists nevertheless a certain correspondence between these principles and the usages or accepted practices of war. This is sufficiently perceptible to serve as a guide that will enable us to find out what may or may not be deemed justifiable practices of war.
One of the most conspicuous deviations of the usages of war from the principles of the Law of War is the peculiar custom, which yet exists, to seize and confiscate all private property of the