The object of these is the surrender of fortresses or strong places as also of troops in the open field. Here again there can be no talk of a generally accepted model. The usages of war have, however, displayed some rules for capitulations, the observance of which is to be recommended:
1. Before any capitulation is concluded, the authority of the Commander who concludes it should be formally and unequivocally authenticated. How necessary a precaution of this kind is, is shown by the capitulations of Rapp at Danzig, and of Gouvion St. Cyr at Dresden, in 1813, which were actually annulled by the refusal of the General Staff of the Allies to ratify them. At the trial of Bazaine the indictment by General Rivière denied the title of the Marshal to conclude a capitulation.
2. If one of the parties to the treaty makes it a condition that the confirmation of the monarch, or the Commander-in-Chief, or even the national assembly is to be obtained, then this circumstance must be made quite clear. Also care is to be taken that in the event of ratification being refused every advantage that might arise from an ambiguous proceeding on the part of one opponent, be made impossible.
3. The chief effect of a capitulation is to prevent that portion of the enemy’s force which capitulates from taking any part in the conflict during the rest of the war, or it may be for a fixed period. The fate of the capitulating troops or of the surrendered fortress differs in different cases.[80] In the Treaty of Capitulation every condition agreed upon both as to time and manner must be expressed in precise and unequivocable words. Conditions which violate the military honor of those capitulated are not permissible according to modern views. Also, if the capitulation is an unconditional one or, to use the old formula, is “at discretion,” the victor does not thereby, according to the modern laws of war, acquire a right of life and death over the persons capitulating.
4. Obligations which are contrary to the laws of nations, such as, for example, to fight against one’s own Fatherland during the continuation of the war, cannot be imposed upon the troops capitulating. Likewise, also, obligations such as are forbidden them by their own civil or military laws or terms of service, cannot be imposed.
5. Since capitulations are treaties of war they cannot contain, for those contracting them, either rights or duties which extend beyond the period of the war, nor can they include dispositions as to matters of constitutional law such as, for example, a cession of territory.
6. A violation of any of the obligations of the treaty of capitulation justifies an opponent in immediately renewing hostilities without further ceremony.
Of the White Flag.
The external indication of a desire to capitulate is the raising of a white flag. There exists no obligation to cease firing immediately on the appearance of this sign (or to cease hostilities). The attainment of a particular important, possibly decisive, point, the utilization of a favorable moment, the suspicion of an illicit purpose in raising the white flag, the saving of time, and the like, may induce the commanding officer to disregard the sign until these reasons have disappeared.
If, however, no such considerations exist, then humanity imposes an immediate cessation of hostilities.
C.—Safe-conducts
Of Safe-Conducts.
The object of these is to secure persons or things from hostile treatment. The usages of war in this matter furnish the following rules:
1. Letters of safe-conduct, for persons, can only be given to such persons as are certain to behave peaceably and not to misuse them for hostile purposes; letters of safe-conduct for things are only to be granted under a guarantee of their not being employed for warlike purposes.
2. The safe-conducts granted to persons are personal to them, i.e., they are not available for others. They do not extend to their companions unless they are expressly mentioned.
An exception is only to be made in the case of diplomatists of neutral States, in whose case their usual entourage is assumed to be included even though the members are not specifically named.
3. The safe-conduct is revocable at any time; it can even be altogether withdrawn or not recognized by another superior, if the military situation has so altered that its use is attended with unfavorable consequences for the party which has granted it.
4. A safe-conduct for things on the other hand is not confined to the person of the bearer. It is obvious that if the person of the bearer appears at all suspicious, the safe-conduct can be withdrawn. This can also happen in the case of an officer who does not belong to the authority which granted it. The officer concerned is in this case fully responsible for his proceedings, and should report accordingly.