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• sanitary authorities;
whether employed by the State or private companies, may be requisitioned to perform their
duties only so long as the duties required do not directly concern the operations of war against
their own country.384
The Occupying Power may also requisition labor to restore the general condition of the
public works to that of peace, including the repair of roads, bridges, railways, and
telecommunication networks, and to perform services on behalf of the local population, such as
the care of the wounded and sick, and the burial of the dead.385
In addition, inhabitants over eighteen years of age may be compelled to perform work
necessary to meet the maintenance needs of the occupation forces (as opposed to its strategic or
tactical needs), such as providing telephone, water, or electricity services to the facilities of the
occupation army from which the occupied territory is administered, or providing support to
prisons, police stations, and other facilities necessary for the maintenance of order among the
civilian population.386
11.20.2.2 Requisition of Police and Other Services Essential to Good Order. In
general, police, firefighters, prison guards, and others who provide services essential to good
order and security in occupied territory may be compelled by an Occupying Power to continue to
provide those services.387 Such a requirement is consistent with the Occupying Power’s
obligation to maintain public order in occupied territory.388
384 1956 FM 27-10 (Change No. 1 1976) ¶419 (“The services which may be obtained from inhabitants by requisition
include those of professional men, such as engineers, physicians and nurses and of artisans and laborers, such as
clerks, carpenters, butchers, bakers, and truck drivers. The officials and employees of railways, trucklines, airlines,
canals, river or coastwise steamship companies, telegraph, telephone, radio, postal and similar services, gas, electric,
and water works, and sanitary authorities, whether employed by the State or private companies, may be
requisitioned to perform their professional duties only so long as the duties required do not directly concern the
operations of war against their own country.”).
385 1956 FM 27-10 (Change No. 1 1976) ¶419 (“The occupant may also requisition labor to restore the general
condition of the public works to that of peace, including the repair of roads, bridges, and railways, and to perform
services on behalf of the local population, such as the care of the wounded and sick and the burial of the dead.”).
386 GC COMMENTARY 294 (“The wording ‘work which is necessary for the needs of the army of occupation’ is very
comprehensive and its interpretation is open to discussion. It will be enough to note here that the clause covers a
wide variety of services—those connected with billeting and the provision of fodder, transport services, the repairing
of roads, bridges, ports and railways and laying telephone and telegraph lines. On the other hand it is generally
agreed that the inhabitants of the occupied territory cannot be requisitioned for such work as the construction of
fortifications, trenches or aerial bases. It is the maintenance needs of the army of occupation and not its strategic or
tactical requirements which are referred to here. The distinction is essential and should be emphasized. It is
confirmed by a provision, to be examined further on, laying down that the Occupying Power cannot compel
protected persons to do work which would involve their participation in military operations.”).
387 See VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 68 (“[I]n fact, all able-bodied native inhabitants may
be called upon to perform police duties, to assist the regular native police in the maintenance of public order, to help
in fire-fighting organizations, or to perform any other duty for the public good.”).
388 Refer to § 11.5 (Duty of the Occupying Power to Ensure Public Order and Safety).
803
These officials may not be required to participate in military operations or other measures
aimed at countering belligerent acts against the Occupying Power that are performed by
privileged combatants under the law of war.389 For example, civilian police forces in occupied
territory may not be compelled to provide security for an occupying force against attacks in
compliance with the law of war launched by lawful combatants, including resistance fighters
who, if captured, would be entitled to POW status under GPW Article 4.
On the other hand, such police forces may be required to continue to perform their
normal policing functions with respect to actual or threatened criminal acts, even where the
victim of such acts is the Occupying Power.390 Similarly, civilian firefighters may be required to
extinguish fires endangering the Occupying Power’s military property that result from attacks by
unprivileged combatants.
11.20.3 Working Conditions for Laborers Performing Requisitioned Work.
Requisitioned work shall be carried out only in the occupied territory where the persons whose
services have been requisitioned are resident, and such persons shall, so far as possible, be kept
in their usual places of employment.391
Workers shall be paid a fair wage, and the work shall be proportionate to their physical
and intellectual capacities.392
The legislation in force in the occupied country concerning working conditions, and
safeguards as regards, in particular, such matters as wages, hours of work, equipment,
preliminary training, and compensation for occupational accidents and diseases, shall be
applicable to the protected persons assigned to the work.393
389 Refer to § 11.20.1.5 (Prohibition Against Other Work That Would Involve Protected Persons in the Obligation of
Taking Part in Military Operations).
390 See GC COMMENTARY 307 (“The reference to Article 51 relates not only to the list of different types of work, but
also to the conditions and safeguards contained in that Article, in particular the prohibition on the use of compulsion
to make protected persons take part in military operations. This is particularly important in the case of police
officers, who cannot under any circumstances be required to participate in measures aimed at opposing legitimate
belligerent acts, whether committed by armed forces hostile to the Occupying Power, by corps of volunteers or by
organized resistance movements. On the other hand it would certainly appear that the Occupying Power is entitled
to require the local police to take part in tracing and punishing hostile acts committed under circumstances other
than those laid down in Article 4 of the Third Geneva Convention. Such acts may in fact be regarded as offences
under common law, whatever ideas may have inspired their authors, and the occupation authorities, being
responsible for maintaining law and order, are within their rights in claiming the co-operation of the police.”).
391 GC art. 51 (“The work shall be carried out only in the occupied territory where the person whose services have
been requisitioned are. Every such person shall, so far as possible, be kept in his usual place of employment.”).
392 GC art. 51 (“Workers shall be paid a fair wage and the work shall be proportionate to their physical and
intellectual capacities.”).
393 GC art. 51 (“The legislation in force in the occupied country concerning working conditions, and safeguards as
regards, in particular, such matters as wages, hours of work, equipment, preliminary training and compensation for
occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in
this Article.”).
804
11.20.4 Voluntary Work Not Prohibited by the GC. Although the GC prohibits protected
persons from being compelled to provide certain types of work related to military operations,
there is no prohibition in the law of war to such persons being employed voluntarily and for pay
in such work.394 For example, there is no law of war prohibition against civilian firefighters
putting out fires endangering civilian property resulting from attacks by lawful combatants
against the Occupying Power’s military property.
However, no pressure or propaganda that aims at securing voluntary enlistment in the
armed or auxiliary forces of the Occupying Power is permitted.395
In addition, certain voluntary humanitarian work is recognized and protected by the
GWS.396
11.20.5 General Protections Applicable to Workers in Occupied Territory.
11.20.5.1 Access to Protecting Power. No contract, agreement, or regulation shall
impair the right of any worker, whether voluntary or not and wherever he or she may be, to apply
to the representatives of the Protecting Power in order to request the Protecting Power’s
intervention.397
For example, it would be prohibited to forbid workers who are protected persons from
applying to the Protecting Power. It would also be prohibited to require any protected persons
who are workers, as a condition of work, to renounce their right to apply for assistance to the
Protecting Power concerning work conditions or any other matter.398
11.20.5.2 No Use of Measures to Create Unemployment to Induce Work for the
Occupying Power. All measures aiming at creating unemployment or at restricting the
opportunities offered to workers in an occupied territory, in order to induce them to work for the
Occupying Power, are prohibited.399
394 1956 FM 27-10 (Change No. 1 1976) ¶420 (“The prohibition against forcing the inhabitants to take part in
military operations against their own country precludes requisitioning their services upon works directly promoting
the ends of the war, such as construction of fortifications, entrenchments, and military airfields or the transportation
of supplies or ammunition in the zone of operations. There is no objection in law to their being employed
voluntarily and for pay in such work.”).
395 Refer to § 11.20.1.1 (Prohibition on Compulsory Service in an Occupying Power’s Armed Forces).
396 Refer to § 7.4.5 (Collection and Care of the Wounded, Sick, and Shipwrecked by Civilians).
397 GC art. 52 (“No contract, agreement or regulation shall impair the right of any worker, whether voluntary or not
and wherever he may be, to apply to the representatives of the Protecting Power in order to request the said Power’s
intervention.”).
398 Refer to § 10.5.6 (Facility for Applying to the Protecting Powers and Assistance Organizations Such as the
ICRC).
399 GC art. 52 (“All measures aiming at creating unemployment or at restricting the opportunities offered to workers
in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited.”).
805
Measures intended to reduce unemployment would not be prohibited by this rule.400
11.21 JUDGES AND OTHER PUBLIC OFFICIALS
11.21.1 Continued Service of Judges and Other Public Officials. The Occupying Power
may not alter the status of public officials or judges in the occupied territories, or in any way
apply sanctions to or take any measures of coercion or discrimination against them, should they
abstain from fulfilling their functions for reasons of conscience.401
Public officials may be understood to include officials at both the national and local
levels who fulfill public duties.402
This prohibition does not prejudice the application of the second paragraph of Article 51
of the GC.403 Thus, a public official may be compelled to work to meet the needs of the army of
occupation or for the public utility services, such as water, electricity, or sanitation.404 Similarly,
a public official may be compelled to provide certain police services.405
This prohibition does not affect the right of the Occupying Power to remove public
officials from their posts.406 For example, the Occupying Power may remove the political
leadership and other political agents from their posts to prevent them from undermining the
Occupying Power’s administration.407
11.21.2 Oath of Public Officials. An Occupying Power may not require the inhabitants
of occupied territory, including officials, to swear allegiance to it.408 However, the Occupying
Power may require such officials as are continued in their offices to take an oath to perform their
400 For example, Coalition Provisional Authority Order No. 39, Foreign Investment, preamble (Sept. 19, 2003)
(“Determined to improve the conditions of life, technical skills, and opportunities for all Iraqis and to fight
unemployment with its associated deleterious effect on public security,”).
401 GC art. 54 (“The Occupying Power may not alter the status of public officials or judges in the occupied
territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them, should
they abstain from fulfilling their function for reasons of conscience.”).
402 GC COMMENTARY 304 (“[T]he term public official generally designates people in State or local government
service, who fulfill public duties.”).
403 GC art. 54 (“This prohibition does not prejudice the application of the second paragraph of Article 51.”).
404 Refer to § 11.20.2 (Types of Work That May Be Compelled).
405 Refer to § 11.20.2.2 (Requisition of Police and Other Services Essential to Good Order).
406 GC art. 54 (“It does not affect the right of the Occupying Power to remove public officials from their posts.”).
407 GC COMMENTARY 308 (“The provision refers primarily to government officials and other political agents who
are generally removed from their posts by the occupation authorities.”). For example, Coalition Provisional
Authority Order No. 1, De-Ba`athification of Iraqi Society, §1(1) (May 16, 2003) (“On April 16, 2003 the Coalition
Provisional Authority disestablished the Ba`ath Party of Iraq. This order implements the declaration by eliminating
the party’s structures and removing its leadership from positions of authority and responsibility in Iraqi society.”).
408 Refer to § 11.6.2.1 (Prohibition on Compelling Inhabitants of Occupied Territory to Swear Allegiance to the
Hostile State).
806
duties conscientiously and not to act to its prejudice.409 Any official who declines to take the
oath may be removed; but, regardless of whether the official takes the oath, the official is
required to obey the legitimate orders of the Occupying Power.410
11.21.3 Salaries of Public Officials. The salaries of civil officials of the hostile
government who remain in the occupied territory and continue the work of their offices,
especially those who can properly continue it under the circumstances arising out of the war -
such as judges, administrative or police officers, and officers of city or communal governments -
are paid from the public revenues of the occupied territory, until the military government has
reason wholly or partially to dispense with their services.411
Based on consistent practice, salaries or incomes connected with purely honorary titles
would be suspended.412 Similarly, the Occupying Power need not continue to pay salaries that
are rewards for loyalty to the prior regime, and may reform the pay system of public servants to
increase transparency and fairness, as well as to create incentives for meritorious service.413
11.22 PUBLIC FINANCES AND TAXES
As a result of assuming the functions of government of the occupied territory, the
financial administration of the occupied territory passes into the hands of the Occupying Power.
409 1956 FM 27-10 (Change No. 1 1976) ¶423 (“The occupant may require such officials as are continued in their
offices to take an oath to perform their duties conscientiously and not to act to its prejudice. Every such official who
declines to take such oath may be removed; but, whether he does so or not, he owes strict obedience to the occupant
as long as he remains in office.”). For example, Military Government, Germany, Supreme Commander’s Area of
Control, Law No. 2, German Courts, art. V, reprinted as Appendix 9 in VON GLAHN, THE OCCUPATION OF ENEMY
TERRITORY 305, 306 (“QUALIFICATIONS OF JUDGES, PROSECUTORS, NOTARIES, AND LAWYERS No person shall be
qualified to act as a of judge, prosecutor, notary or lawyer, until he shall have taken an oath in the following form:
Oath ‘I swear by almighty God that I will at all times apply and administer the law without fear or favour and with
justice and equity to all persons of whatever creed, race, color or political opinion they may be, that I will obey the
laws of Germany, and all enactments of the Military Government, in spirit as well as in letter, and will constantly
endeavour to establish equal justice under the law for all persons. So help me God.’”).
410 Refer to § 11.7.1 (Inhabitants’ Obedience to the Occupying Power).
411 1956 FM 27-10 (Change No. 1 1976) ¶424 (“The salaries of civil officials of the hostile government who remain
in the occupied territory and continue the work of their offices, especially those who can properly continue it under
the circumstances arising out of the war - such as judges, administrative or police officers, officers of city or
communal governments - are paid from the public revenues of the occupied territory, until the military government
has reason wholly or partially to dispense with their services.”). For example, Coalition Provisional Authority
Regulation No. 2, Development Fund for Iraq, §6(3) (Jun. 15, 2003) (“Purposes. Sums may be disbursed from the
Fund to meet the humanitarian needs of the Iraqi people and for the economic reconstruction and repair of Iraq’s
infrastructure; for the continued disarmament of Iraq; for the costs of Iraq’s civilian administration; and for other
purposes the Administrator determines to be for the benefit of the people of Iraq.”).
412 1956 FM 27-10 (Change No. 1 1976) ¶424 (“Salaries or incomes connected with purely honorary titles are
always suspended.”).
413 For example, Coalition Provisional Authority Order No. 30, Reform of Salaries and Employment Conditions of
State Employees, preamble (Sept. 8, 2003) (“Understanding that the salaries of public workers under the former
regime were paid through a complicated system largely composed of incentive pay that rewarded loyalty to the
former regime over meritorious service, ... Noting that salary and conditions of employment reform is essential to
guarantee fairness within the public system to ensure that state employees receive appropriate compensation for their
efforts, but also to provide incentives for meritorious service or sanctions for failure to perform appropriately,”).
807
During the occupation, the fiscal laws of the enemy State remain in effect, but may be changed
or suspended by the Occupying Power under certain circumstances, as discussed below.
11.22.1 Taxes. If, in the occupied territory, the Occupying Power collects the taxes,
dues, and tolls imposed for the benefit of the State, it shall do so, as far as is possible, in
accordance with the rules of assessment and incidence in force, and shall in consequence be
bound to defray the expenses of the administration of the occupied territory to the same extent as
the legitimate Government was so bound.414
11.22.1.1 Supervision of Taxes Collected by Local Authorities. The words “for
the benefit of the State” were inserted in Article 48 of the Hague IV Regulations to exclude local
taxes, dues, and tolls collected by local authorities for local purposes.415 The Occupying Power
may supervise the expenditure of such revenue and prevent its hostile use.416
11.22.1.2 Changes in Taxes or New Taxes. The Occupying Power shall collect
taxes, as far as is possible, in accordance with the rules of assessment and incidence in force.
This is an example of the general rule that the Occupying Power shall respect the laws in force in
the occupied territory unless absolutely prevented.417 Modifications to the tax laws may be
justified by practical considerations and considerations of public order and safety.
414 HAGUE IV REG. art. 48 (“If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposed for
the benefit of the State, he shall do so, as far as is possible, in accordance with the rules of assessment and incidence
in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to
the same extent as the legitimate Government was so bound.”).
415 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 185 (“Taxes raised by local authorities for local
purposes may not be diverted by the occupant from the purpose for which they were raised although the occupant
may supervise their collection. It would seem that state taxes collected by local bodies and not used for local
purposes but transmitted to the state treasury are taxes ‘imposed for the benefit of the state.’”). See also SPAIGHT,
WAR RIGHTS ON LAND 378 (“The words ‘imposed for the benefit of the State’ in Article XLVIII are intended to
exclude provincial and parochial taxes, or ‘rates’ as they are called in England. The latter the occupant must not
intercept; he can only supervise the expenditure of such revenue, to see that it is not devoted to a hostile purpose.”).
416 1956 FM 27-10 (Change No. 1 1976) ¶427 (“The words ‘for the benefit of the State’ were inserted in the
foregoing article (HR, art. 48; par. 425 herein) to exclude local taxes, dues, and tolls collected by local authorities.
The occupant may supervise the expenditure of such revenue and prevent its hostile use.”). See also JAMES BROWN
SCOTT, THE PROCEEDINGS OF THE HAGUE PEACE CONFERENCES: THE CONFERENCE OF 1899 523 (1920) (“Jonkheer
van Karnebeek remarks that as the fundamental purport of this article is that the authority of the occupant is
substituted for that of the invaded State, it cannot be admitted that the occupant, by assuming a right which the
occupied State does not possess, may take possession of the municipal taxes, which the invaded State itself would
not think of appropriating in normal circumstances. Mr. Veljkovitch remarks that in this eventuality the municipal
authorities, being no longer able to discharge their duties, can likewise not collect the municipal taxes and especially
the county rate; it is therefore proper for the occupant, whose power is substituted for that of the authorities, to take
possession of the said taxes.”).
417 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 186 (“The occupant in collecting taxes must follow
the rules of procedure as well as the law of the country with regard to the distribution of the tax burden. This is an
instance of the general rule that the occupant shall respect the laws in force in the occupied territory unless
absolutely prevented.”).
808
If, due to the flight or unwillingness of local officials, it is impracticable to follow the
rules of incidence and assessment in force, then the total amount of taxes to be paid may be
allotted among the districts, towns, etc., and the local authorities may be required to collect it.418
The Occupying Power may suspend the tax laws of the occupied territory.419 Similarly,
the Occupying Power may also reduce the rate of taxes under the existing tax laws.
Unless required to do so by considerations of public order and safety, the Occupying
Power must not create new taxes.420 Additional revenue may be raised in some other form, such
as monetary contributions or customs duties.421
U.N. Security Council resolutions may provide additional authority for the Occupying
Power to amend the tax laws.422
11.22.1.3 Spending of Tax Revenue. The first charge upon such taxes is for the
cost of the administration of the occupied territory. The balance may be used for the purposes of
the Occupying Power.423
418 1956 FM 27-10 (Change No. 1 1976) ¶426a (“When Existing Rules May Be Disregarded. If, due to the flight or
unwillingness of the local officials, it is impracticable to follow the rules of incidence and assessment in force, then
the total amount of taxes to be paid may be allotted among the districts, towns, etc., and the local authorities
required to collect it.”).
419 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 151-52 (“Just as an occupant may collect taxes, so he may
suspend existing taxes if the unaffected levies are sufficient to cover administrative expenses and if he does not
desire to enrich himself out of possible surplus revenues.”). For example, Coalition Provisional Authority Order
No. 37, Tax Strategy for 2003, §2 (Sept. 19, 2003) (“Subject to Section 6 of this Order, the following taxes are
suspended from April 16, 2003 to the end of calendar year 2003:”).
420 1956 FM 27-10 (Change No. 1 1976) ¶426b (“New Taxes. Unless required to do so by considerations of public
order and safety, the occupant must not create new taxes.”); Bassil Abu Aita et al. v. The Regional Commander of
Judea and Samaria and Staff Officer in Charge of Matters of Custom and Excise, HCJ 69/81; Omar Abdu Kadar
Kanzil, et al. v. Officer in Charge of Customs, Gaza Strip Region and the Regional Commander of the Gaza Strip,
HCJ 493/81, Israel Supreme Court Sitting as the High Court of Justice, 200, 270-71 (Apr. 5, 1983) (“Since the
power of imposing ordinary taxes are within the domain of the sovereign alone, accordingly, it is argued, it does not
pertain to anyone whose authority is temporary and military, as described. However, while no one disputes the
theoretical base of this doctrine, it does not of necessity create a limitation on the power to impose taxation if the
benefit and requirements of the territory deem it necessary, since the maintenance of proper balance between them
and the requirements of the ruling army is a constant central guiding principle of military government. This
character of military government indeed explains why taxes may be imposed only for the requirements of the
territory (or requirements of the army when army contributions are involved), but it does not necessarily lead to the
conclusion that the limitation on the imposition of taxes also takes precedence over the obligation to satisfy the
needs of the territory and its inhabitants, and as far as possible, to restore normal life, including the economic aspect
thereof.”).
421 Refer to § 11.22.2 (Contributions); § 11.22.3 (Customs Duties).
422 Refer to § 11.1.2.5 (Occupation and U.N. Security Council Resolutions).
423 1956 FM 27-10 (Change No. 1 1976) ¶425b (“Surplus. The first charge upon such taxes is for the cost of the
administration of the occupied territory. The balance may be used for the purposes of the occupant.”).
809
The Occupying Power may use tax revenue to defray the costs of maintaining order in the
occupied territory or for expenditures that benefit the local population (e.g., infrastructure
improvements).424
The Occupying Power may refrain from spending money for the support of any activity
opposed to its military interests or to the restoration of order in the occupied territory, even if the
State whose territory is occupied formerly allocated tax revenues to such activity.425
11.22.1.4 Exemption of the Occupying Power From Local Taxation. As the
paramount authority in the occupied territory,426 the Occupying Power is exempt from
indigenous taxation in the occupied territory unless it specifically waives its sovereign immunity
and consents to be taxed.427 Its personnel are also generally exempt from local taxation, as part
of their immunity from local law.428
In practice, the Occupying Power often issues an order specifying that no direct taxes of
any kind may be levied or assessed within the occupied territory on the persons, agencies,
property, instrumentalities, or transactions of the Occupying Power.429
11.22.1.5 Scope of the Occupying Power’s Power to Collect Taxes. The power of
the Occupying Power to collect taxes extends only to persons or property under its actual
control.430 For example, persons and property wholly outside occupied territory generally may
424 See also VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 151 (“It should be pointed out in this connection
that as long as it is a duty of the occupant to restore order and public safety in the territory, the expenditures incurred
by him as administrator for the benefit of the territory and its inhabitants should be paid for by the beneficiaries.
This appears to be particularly true in the case of capital expenditures. Normally an occupant would be unwilling to
permit heavy capital outlays in occupied enemy territory (such as the construction of dams, power stations, canals,
and public buildings), but if, in rare instances, permission would be granted for such extraordinary outlays over and
above normal operating expenses of the native administration, then the necessary funds should come from any
excess revenues collected by the indigenous agencies, not from the occupant’s own reserves.”).
425 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 150 (“Obviously no occupant need spend money for the
support of any activity opposed to his military interests or to the restoration of order in the area, even if the absent
legitimate sovereign formerly allocated tax revenues to such activity.”).
426 Refer to § 11.8.1 (Paramount Authority of the Occupying Power Over Government Functions in Occupied
Territory).
427 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 153-54 (“[A]n occupant is virtually exempt from
indigenous taxation in an occupied territory unless he takes the rather unlikely step of waiving his sovereign
immunity and consents to be taxed. In actual practice the occupation authorities normally issue an order to the
effect that no direct taxes of any kind may be levied within the occupied area on the persons, agencies, or property
of the armed forces of the invader and that no direct taxes may be assessed against the property, instrumentalities or
transactions of the occupying authorities themselves.”).
428 Refer to § 11.8.5 (Immunity of Occupation Personnel From Local Law).
429 For example, Coalition Provisional Authority Order No. 17, Status of the Coalition Provisional Authority, MNF-
Iraq, Certain Missions and Personnel in Iraq, §10(1) (Jun. 27, 2004) (“The MNF, Sending States and Contractors
shall be exempt from general sales taxes, Value Added Tax (VAT), and any similar taxes in respect of all local
purchases for official use or for the performance of Contracts in Iraq.”).
430 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 197 (“It must be remembered that the power of the
occupant to collect taxes is purely de facto and territorial, i.e., it extends only to persons or property under his actual
control.”).
810
not be taxed,431 but the property of the absent inhabitants that is within the occupied territory
may be taxed.
11.22.1.6 Social Welfare Taxes. An Occupying Power is often an employer of
local civilian labor. Local law may provide that employers are responsible for the deduction and
transfer to indigenous agencies of unemployment, health insurance, pensions, and similar welfare
contributions. However, generally the agencies of the Occupying Power do not act as a collector
for the local authorities, and will not be responsible for the employer’s share of such welfare
taxes. On the other hand, the inhabitants retain their obligation to pay their share of such
contributions out of their remuneration.432
11.22.2 Contributions. If, in addition to continuing to collect taxes under the existing law
of the occupied territory as permitted by Article 48 of the Hague IV Regulations, the Occupying
Power levies other money contributions in the occupied territory, this shall only be for the needs
of the army or the administration of the territory in question.433
11.22.2.1 Prohibited Purposes for Levying Contributions. Contributions may not
be levied for other than the needs of the occupying forces and the administration of the occupied
territory. For example, contributions may not be levied:
• for the enrichment of the Occupying Power;
• for the payment of war expenses generally;434
• for the purposes of collective punishment;435 or
• for the purposes of impoverishing the population in order to pressure the enemy to sue for
peace.436
431 Cf. MacLeod v. United States, 229 U.S. 416, 432-33 (1913) (“A state of war as to third persons continued until
the exchange of treaty ratifications, and, although rice, not being contraband of war, might have been imported, the
authority of the military commander, until the exchange of ratifications, may have included the right to control
vessels sailing from Manila to trade in the enemy’s country and to penalize violations of orders in that respect. But
whatever the authority of the commander at Manila or those acting under his direction to control shipments by
persons trading at Manila and in vessels sailing from there of American registration, such authority did not extend to
the second collection of duties upon a cargo from a foreign port to a port occupied by a de facto government which
had compulsorily required the payment of like duties.”).
432 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 153 (“An inhabitant of the occupied territory will retain
his obligation to pay such contributions out of his remuneration as approved local law demands, but must pay the
amounts due from his take-home pay to whatever native agency is responsible for the collection of the funds.”).
433 HAGUE IV REG. art. 49 (“If, in addition to the taxes mentioned in the above article, the occupant levies other
money contributions in the occupied territory, this shall only be for the needs of the army or the administration of
the territory in question.”).
434 1956 FM 27-10 (Change No. 1 1976) ¶428b (“Prohibited Purposes. Contributions may not be levied for the
enrichment of the occupant, for the payment of war expenses generally, or for other than the needs of the occupying
forces and the administration of the occupied territory.”).
435 Refer to § 11.6.2.2 (Prohibition Against General Penalties in Occupied Territory).
811
11.22.2.2 Methods of Levying Contributions. No contribution shall be collected
except under a written order, and on the responsibility of a “Commander-in-chief.”437 The term
“Commander-in-chief” may be understood to refer to the highest military officer charged with
the administration of the occupied territory.438 Commanders of small units or detachments may
not order the collection of contributions.439
The collection of contributions shall only be effected as far as possible in accordance
with the rules of assessment and incidence of the taxes in force.440
For every contribution, a receipt shall be given to the contributors.441 The receipt is
intended to secure for the contributors the possibility of being indemnified afterward by their
own government, and does not imply a promise of reimbursement by the Occupying Power.442
11.22.2.3 Forced Loans. The Occupying Power may seek contributions from the
inhabitants of an occupied territory in the form of forced loans. The Occupying Power is
required to repay such loans. As forced loans are viewed as a form of contribution, they are
governed by the rules applicable to contributions.443
11.22.2.4 Non-Cash Contributions. As contributions are money demands,
commodities may not be exacted as contributions. However, if the inhabitants of the occupied
territory use certain commodities, rather than money, as a medium of exchange and receivable in
payment of tax obligations, contributions in-kind limited to such commodities would be
436 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 177 (“They may not be imposed for the purpose of
enriching the occupant or for impoverishing the population and thus exerting pressure on it to sue for peace.”).
437 HAGUE IV REG. art. 51 (“No contribution shall be collected except under a written order, and on the
responsibility of a Commander-in-chief.”).
438 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 182 (“Seemingly the term ‘commander in chief' refers
to the highest military officer charged with the administration of the occupied territory.”).
439 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 181 (“Levies of contributions by commanders of
small units or detachments are prohibited.”).
440 HAGUE IV REG. art. 51 (“The collection of the said contribution shall only be effected as far as possible in
accordance with the rules of assessment and incidence of the taxes in force.”). Compare § 11.22.1.2 (Changes in
Taxes or New Taxes).
441 HAGUE IV REG. art. 51 (“For every contribution a receipt shall be given to the contributors.”).
442 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 183-84 (“There is no obligation imposed by the
Hague Regulations for the reimbursement of contributions. The receipt required to be given the contributors is
evidence that money has been exacted but implies no promise to pay by the occupant. The receipt is intended to
secure to the contributors ‘the possibility of being indemnified afterwards by their own government’.”).
443 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 184 (“A forced loan is an involuntary exaction of
money imposed on the inhabitants by the occupant which the latter is bound to repay. It is a form of contribution
and differs from the latter only in that there is a duty of returning the money exacted. The same rules that govern
contributions apply to forced loans.”).
812
permissible.444 Additionally, if the Occupying Power finds it difficult to secure prompt money
payment, it may accept securities and bills of exchange from contributors in lieu of money.445
11.22.3 Customs Duties. The Occupying Power has the right to continue to exact
existing duties, as part of its right to collect existing taxes.446 Such collection must comply with
the rules for the collection of existing taxes.447
The Occupying Power may also exact new duties as a form of contributions levied
against the enemy or its trade.448 Such new duties must comply with the rules for
contributions.449
11.22.3.1 Exemptions for Certain Relief Shipments. Relief shipments for POWs,
relief shipments for internees, and other relief consignments intended for occupied territory are
exempt from customs duties.450
444 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 182-83 (“In primitive communities some
commodities may be the medium of exchange and receivable in payment of tax obligations. In such circumstances
contributions in kind limited to such commodities would seemingly be permissible as being contributions in
money.”).
445 J.A.G.S. TEXT NO. 11, LAW OF BELLIGERENT OCCUPATION 183 (“An occupant who finds it difficult to secure
prompt money payments may accept securities and bills of exchange from the contributors in lieu of money. This
practice was used by the Germans in the Franco-German War of 1870.”).
446 Dooley v. United States, 182 U.S. 222, 230 (1901) (“Upon the occupation of the country by the military forces of
the United States, the authority of the Spanish Government was superseded, but the necessity for a revenue did not
cease. The government must be carried on, and there was no one left to administer its functions but the military
forces of the United States. Money is requisite for that purpose, and money could only be raised by order of the
military commander. The most natural method was by the continuation of existing duties. In adopting this method,
General Miles was fully justified by the laws of war.”).
447 Refer to § 11.22.1 (Taxes).
448 For example, Coalition Provisional Authority Order No. 38, Reconstruction Levy, §1 (Sept. 19, 2003) (“1)
Notwithstanding CPA Order Number 12 or any other CPA Order suspending a tax, levy, duty, charge, withholding,
fee or tariff, there shall be created a levy known as the Reconstruction Levy. 2) For the purpose of calculating the
Reconstruction Levy, the taxable value of goods shall consist of their total customs value assessed in accordance
with international practice. 3) The Reconstruction Levy shall be imposed at a rate of 5% of the taxable value of
goods. The revenues from the Reconstruction Levy shall be used only to assist the Iraqi people and support the
reconstruction of Iraq. It shall expire two years from the date that this Order enters into force. 4) Unless exempted
under this Order, the Reconstruction Levy shall be imposed on all goods imported into Iraq from all countries
beginning 1 January 2004.”); Fleming v. Page, 50 U.S. 603, 616 (1850) (“The person who acted in the character of
collector in this instance, acted as such under the authority of the military commander, and in obedience to his
orders; and the duties he exacted, and the regulations he adopted, were not those prescribed by law, but by the
President in his character of commander-in-chief. The custom-house was established in an enemy’s country, as one
of the weapons of war. … The duties required to be paid were regulated with this view, and were nothing more than
contributions levied upon the enemy, which the usages of war justify when an army is operating in the enemy’s
country.”).
449 Refer to § 11.22.2 (Contributions).
450 Refer to § 9.20.4.1 (Exemption From Dues for Relief Shipments): § 10.23.4.1 (Exemption From Dues for Relief
Shipments); § 11.17.1.3 (Charges, Taxes, and Customs Duties on Collective Relief Consignments for Occupied
Territories).
813
11.22.3.2 Power to Suspend Customs Duties and Tariffs or Exempt Certain
Goods. The Occupying Power may suspend customs duties and tariffs for shipment of goods
into the occupied territory.451 It may also exempt certain types of goods (e.g., humanitarian
goods, goods for its forces) from customs duties and tariffs.452
11.22.4 Enemy Public Debts.
11.22.4.1 Debts Owed to Occupied Territory. Many jurists have taken the view
that the Occupying Power is generally not permitted to collect pre-occupation debts owed to the
sovereign of the occupied territory, as it is not a party to the agreement originating the debt.453
However, the Occupying Power may collect the debts owed to the sovereign, provided that the
debts may be legitimately characterized as realizable securities that are strictly the property of
the State (e.g., bearer instruments).454 In addition, the Occupying Power may seize debts owed
to insurgent forces.455
451 For example, Coalition Provisional Authority Order No. 12, Trade Liberalization Policy, §1 (Jun. 8, 2003) (“All
tariffs, customs duties, import taxes, licensing fees and similar surcharges for goods entering or leaving Iraq, and all
other trade restrictions that may apply to such goods, are suspended until December 31, 2003.”); Coalition
Provisional Authority Order No. 54, Trade Liberalization Policy 2004, §1 (Feb. 26, 2004) (“All customs tariffs,
duties, import taxes (not including the Reconstruction Levy imposed by CPA Order Number 38), and similar
surcharges for goods entering or leaving Iraq are suspended until the sovereign transitional Iraqi administration
imposes such charges following the CPA’s transfer of full governance authority to that administration.”).
452 Coalition Provisional Authority Order No. 38, Reconstruction Levy, §2 (Sept. 19, 2003) (“1) The following
humanitarian goods shall be exempt from the Reconstruction Levy: … e. Goods imported to be delivered as
humanitarian assistance to the people of Iraq or in support of reconstruction of Iraq. … 2) The Reconstruction Levy
shall not apply to the following persons or entities: … b) Coalition Forces;”).
453 See VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 156 (“[T]he majority of jurists concur in the view that
the occupant cannot legally collect pre-occupation debts owed to the legitimate sovereign of the territory and at the
same time act in accordance with the prevailing rules of international law.”); U.S. ARMY, THE JUDGE ADVOCATE
GENERAL’S SCHOOL, CIVIL AFFAIRS MILITARY GOVERNMENT: SELECTED CASES AND MATERIALS 108 (1958) (“The
first paragraph of Article 53, HR (par. 403, FM 27-10), raises, rather than answers, the question whether the
occupant may collect debts due the ousted sovereign. The question is complicated by the argument that as state
debts constitute obligations between the debtors and the ousted sovereign and as occupation does not transfer
sovereignty, the occupant does not succeed to the privity enjoyed by the ousted sovereign. Some authorities accept
this rationale and take the position that the occupant cannot legally collect any debts due the state. See, Von Glahn,
The Occupation of Enemy Territory 156-159 (1957). Other authorities, resorting to Article 48 HR (par. 425a, FM
27-10), contend that as the occupant is obliged to defray the expenses of administration of the territory, he ought to
be authorized to collect those debts falling due during the period of his occupation. See, Stone, Legal Controls of
International Conflict 717 (1954).”).
454 Refer to § 11.18.5.3 (Public Personal (Movable) Property).
455 For example, In Re, Order of Major-General Otis Requiring Smith, Bell & Co., A Banking House at Manila, to
Turn Over to the American Authorities One Hundred Thousand Dollars, Held by Said House as the Property of the
Insurgent Forces in the Philippines, Submitted October 10, 1899, Case No. 738, Division of Insular Affairs, War
Department in CHARLES E. MAGOON, LAW OFFICER, BUREAU OF INSULAR AFFAIRS, WAR DEPARTMENT, REPORTS
ON THE LAW OF CIVIL GOVERNMENT IN TERRITORY SUBJECT TO MILITARY OCCUPATION BY THE MILITARY FORCES
OF THE UNITED STATES 261, 262 (2nd ed., 1902) (“It is conceded that the fund seized was intended to be used for
promoting the insurrection and that the insurgents sought to utilize the bank as a means of transfer for said funds.
Under the laws and usages of war the United States may lawfully seize and retain such funds, and to that end may
compel the person having such funds, in his possession to pay over the same to the military authorities. The most
favorable view of the conduct of the bank in attempting to perform the service rendered the insurgents herein, is to
814
11.22.4.2 Existing Debts Owed by the Occupied Territory. The Occupying Power
is under no obligation to pay the debts owed by the occupied territory, although it may choose to
do so as a matter of policy.456
The Occupying Power may prevent payments from being made from occupied territory to
a hostile belligerent.457
11.22.4.3 Contracting New Debt on Behalf of the Occupied Territory. In general,
the Occupying Power may not contract new debts (including through the issuance of debt
securities) on behalf of the occupied territory or collect taxes to pay interest on such debt.458
However, new debt may be undertaken on behalf of the occupied territory if immediately
necessary for the welfare of the inhabitants of occupied territory, and if undertaking such debt
constitutes a fair and reasonable transaction.459
11.22.4.4 Refinancing or Consolidating Existing Public Debt. The Occupying
Power may refinance or consolidate already existing public debt of the occupied territory if it is
consider the obligation assumed by the bank as creating an indebtedness to the persons associated in the insurrection
and the draft as an evidence thereof. Such indebtedness may properly be collected by the United States as a military
measure calculated to weaken the insurrection.”).
456 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 158-59 (“Most authorities concur in the belief that an
occupant is under no obligation to pay interest on or the principal of any public debt owed by the territory, that is, by
the lawful sovereign. The occupant may, of course, choose to do so, as a matter of public policy, just as he may
decide to pay pensions hitherto charged against the absent sovereign, but ordinarily all such payments are not
considered to constitute proper administrative expenses obligating the occupying power.”).
457 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 156 (“The occupant may rightfully prevent all payments
from the area under his control to the hostile government.”).
458 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 159 (“Second, it is generally accepted that an occupant
may not contract new debts on behalf of the occupied territory or collect taxes to pay interest on such unlawful debt.
Some authorities differ with this conclusion and maintain that there exists an exception, based on necessity and on
the occupant’s obligation to restore and maintain order and public safety. This latter view appears reasonable,
provided that it could be demonstrated convincingly that the new indebtedness was not only required by the welfare
of the native population but also constituted a fair and reasonable transaction.”). For example, Coalition Provisional
Authority Order No. 95, Financial Management Law and Public Debt Law, §4(2) (Jun. 4, 2004) (“Until such time as
the Iraqi Interim Government assumes full governance authority in accordance with Article (2)(B)(1) of the Law of
the Administration for the State of Iraq for the Transitional Period, the Ministry of Finance is prohibited from
issuing new debt securities if the issuance of such securities would increase the total level of Iraq’s public debt,
including obligations to the Central Bank, beyond the current level of such debt.”).
459 John W. Griggs, Attorney General, Cuba—Claims—Contracts, Jan. 19, 1899, 22 OPINIONS OF THE ATTORNEY
GENERAL 310, 311 (1900) (“The completion of the proposed contract between Dady & Co. and the city of Havana
would involve an expenditure for the benefit of that city of $14,000,000, to be secured by an issue of municipal
bonds. It is manifest that a matter of such great importance to the city of Havana, its citizens and taxpayers, ought
not to be determined without a full and complete understanding of all the facts and a thorough knowledge of the
civil law applicable thereto under the system prevailing in Cuba. … The administration of the United States in Cuba
is of a military nature, and merely temporary. No action binding the island or any of its municipalities to large
expenditures and continuing debt ought to be made, except upon grounds of immediate necessity, which in this case
do not appear to be present.”).
815
clearly in the interest of sound financial administration of that territory, and therefore of direct
benefit to the inhabitants.460
11.22.5 Currency and Exchange Rates. The Occupying Power may leave the local
currency of the occupied area in circulation. The Occupying Power may also authorize domestic
authorities to re-issue currency if necessary for ensuring public order and safety.461
The Occupying Power may introduce its own currency into the occupied area or issue
special currency for use in the occupied area territory, should the introduction or issuance of such
currency be necessary.462 There is a long history of issuing such war currency.463 The issuance
of occupation currency may be necessary to counteract the enemy State’s practice of engaging in
economic sabotage.464
460 For example, Coalition Provisional Authority Order No. 95, Financial Management Law and Public Debt Law,
§1(2) (Jun. 4, 2004) (“This Order promulgates the Public Debt Law, which authorizes the Ministry of Finance to
issue and pay debt securities guaranteed by the Government, and establishes certain related authorities and duties,
for the purposes of financing Government operations and promoting a stable Iraqi economy.”). See also VON
GLAHN, THE OCCUPATION OF ENEMY TERRITORY 159 (“[A]n occupant appears to be entitled to refinance or to
consolidate already existing public debts of an occupied territory if such a step is clearly in the interest of sound
financial administration and thus for the direct benefit of the inhabitants of the area.”); J.A.G.S. TEXT NO. 11, LAW
OF BELLIGERENT OCCUPATION 232 (“Seemingly, the occupant acting as administrator of the occupied territory may
refinance or consolidate the existing indebtedness of the occupied state in the interest of sound public
administration.”).
461 For example, Coalition Provisional Authority Order No. 43, New Iraqi Dinar Banknotes, §3(1) (Oct. 14, 2003)
(“The CBI [Central Bank of Iraq] is, pursuant to Article 34 of the Central Bank of Iraq Law No. 64 of 1976, as
amended, the sole authority in the Republic of Iraq vested with the power to issue legal tender currency. The CBI,
under the supervision of the CPA, shall issue New Iraqi dinar banknotes and determine the denominations, designs,
technical specifications, and other characteristics of New Iraqi dinar banknotes.”).
462 1956 FM 27-10 (Change No. 1 1976) ¶430 (“The occupying power may leave the local currency of the occupied
area in circulation. It is also authorized to introduce its own currency or to issue special currency for use only in the
occupied area, should the introduction or issuance of such currency become necessary.”); Abotiz & Co. v. Price, 99
F. Supp. 602, 611-12 (D. Utah 1951) (“Some recognized medium of exchange was necessary to keep the economic
life of the community going. And, the power of a military government in occupied enemy territory to issue military
currency cannot seriously be questioned.”).
463 Aboitiz & Co. v. Price, 99 F. Supp. 602, 614-15 (D. Utah 1951) (“The validity of such war currency is not only
supported by these principles of international law, to which our own country has given its assent, but, it is supported
by the dictates of a sound public policy, and, there is back of it a long history of the use of war money by many
nations. During our own Revolutionary War, the Continental Congress issued currency for use in British territory
occupied by the colonial troops before the Declaration of Independence. The rebel government of the Confederate
States issued a war currency which, as we have seen, was held valid by the Supreme Court of the United States.
Moreover, the United States and her allies in World War II issued occupation currency in Sicily, Germany, and
Austria. The Combined Chief of Staffs of the Supreme Allied Commander issued a directive June 24, 1943, that the
task forces use, besides regular United States coins, yellow seal dollars and besides regular British coins, British
Military Authority (BMA) notes, to supplement lire currency. The Combined Directive for Military Government in
Germany, April 28, 1944, directed the Allied forces to use yellow seal dollars and British Military Authority notes
(BMA), if the Reichs mark currency became inadequate. The American Directive on Military Government of
Austria, June 27, 1945, ordered our forces to use for military purposes only Allied Military Schillings.”).
464 For example, Opinion on the Legality of the Issuance of AMG (Allied Military Government) Currency in Sicily,
Sept. 23, 1943, reprinted in Occupation Currency Transactions: Hearings Before the Committees on
Appropriations Armed Services and Banking and Currency, U.S. Senate, 80th Congress, First Session, 73, 81-82
816
The Occupying Power may also set exchange rates for currency in occupied territory.465
The Occupying Power’s powers to regulate currency must not be used to confiscate
private property.466 For example, intentional debasement of currency by the establishment of
fictitious valuation or exchange rates, or like devices, as well as failure to take reasonable steps
to prevent inflation, with the result of enrichment of the Occupying Power, would violate
international law.467
11.23 OTHER ECONOMIC REGULATION OF OCCUPIED TERRITORY
11.23.1 General Authority of the Occupying Power to Regulate Commercial Intercourse.
The Occupying Power has the right to regulate commercial intercourse within, into, or out of the
occupied territory. It may subject such intercourse to such prohibitions or restrictions as are
essential to the purposes of the occupation.468 The Occupying Power also may remove existing
(Jun. 17-18, 1947) (“The currency policies deliberately followed by the Axis in retreat were designed to make the
maintenance of ‘public order and safety’ by the Allied powers as difficult as possible. The variety of forms of
economic sabotage which the Germans might use is illustrated by the seemingly opposite practices followed in
Tunisia and in Sicily. In Tunisia, the Germans distributed Bank of France notes on a grand scale, increasing wage
rates to some classes of employees manifold, patronizing the black market freely, and paying collaborationists
lavishly. … In Sicily, Mussolini went even further [than in Italy] and ordered the banks to be substantially depleted
to the point where additional new currency was urgently needed for immediate use to permit the resumption of
normal commercial activity. … Thus, the Axis practices made a ready supply of new currency even more essential
than otherwise, and provide a complete justification for the use of such currency under the test of the Hague
Convention.”).
465 For example, Coalition Provisional Authority Order No. 43, New Iraqi Dinar Banknotes, §5 (Oct. 14, 2003)
(“The 1990 dinar banknotes and the Swiss dinar banknotes and coins shall be exchanged against New Iraqi dinar
banknotes at the official conversion rates of one (1) 1990 dinar to one (1) New Iraqi dinar, and of one (1) Swiss
dinar to one-hundred-and-fifty (150) New Iraqi dinars.”).
466 Refer to § 11.18.6.1 (Prohibition on Confiscation of Private Property in Occupied Territory).
467 1956 FM 27-10 (Change No. 1 1976) ¶430 (“Intentional debasement of currency by the establishment of
fictitious valuation or exchange rates, or like devices, as well as failure to take reasonable steps to prevent inflation,
are violative of international law.”). See also Opinion on the Legality of the Issuance of AMG (Allied Military
Government) Currency in Sicily, Sept. 23, 1943, reprinted in Occupation Currency Transactions: Hearings Before
the Committees on Appropriations Armed Services and Banking and Currency, U.S. Senate, 80th Congress, First
Session, 73, 82 (Jun. 17-18, 1947) (“The Germans were roundly criticized during the First World War, and again in
this war, for introducing occupation marks and similar currency devices. … The vice of the German practice is not
in the use of currency, but in the excessive issue of valueless currency as a device for stripping the occupied area of
its good and its labor for the benefit of Germany.”).
468 1956 FM 27-10 (Change No. 1 1976) ¶376 (“The occupant has the right to regulate commercial intercourse in the
occupied territory. It may subject such intercourse to such prohibitions and restrictions as are essential to the
purposes of the occupation.”). See also WILLIAM E. BIRKHIMER, MILITARY GOVERNMENT AND MARTIAL LAW 268
(1914) (“One of the most important incidents of military government is the regulation of trade with the subjugated
state. The Occupying State has an unquestioned right to regulate commercial intercourse with conquered territory.
It may be absolutely prohibited, or permitted to be unrestricted, or such limitations may be imposed thereon as either
policy or a proper attention to military measures may justify.”).
817
commercial restrictions or regulations when essential to the purposes of the occupation.469 For
example, the Occupying Power may suspend existing customs tariffs.470
The purposes of the occupation that justify economic regulation may include the military
interest of the Occupying Power, the needs of the inhabitants of occupied territory, and
applicable law of war obligations.
For example, for its military purposes, the Occupying Power may impose a moratorium
on business payments until an effective occupation government is in place in order to safeguard
financial institutions, to preserve records, and to ensure that funds and other assets of the enemy
government are not transferred without the knowledge and approval of the Occupying Power.
Similarly, for purposes of security and restoration of public order, the Occupying Power may
also take steps to prevent hoarding of supplies, to curb or prevent black markets, and to regulate
labor conditions, including strikes.471 As another case in point, in order to fulfill its obligations
with respect to the preservation of cultural property in occupied territory, the Occupying Power
may issue commercial regulations intended to prevent illegal traffic in, and looting of, such
property.472
Additional authority to regulate the economy of occupied territory may be provided by
U.N. Security Council resolutions.473
11.23.2 Limit on the Overall Burdens Placed on the Economy of the Occupied Territory.
The economy of an occupied territory can only be required to bear the expenses of the
occupation, and these should not be greater than the economy of the occupied territory can
reasonably be expected to bear.474 For example, requisitions must be in proportion to the
resources of the occupied territory.475
469 2004 UK MANUAL ¶11.32 (“The occupying power may place on the occupied territory such restrictions and
conditions in respect of commercial dealings as may be necessary for military purposes. For the same reasons it
may remove existing restrictions, such as current customs tariffs.”); 1958 UK MANUAL ¶530 (“The Occupant may
place such restrictions and conditions upon all commercial intercourse with the occupied territory as he may deem
suitable for his military purpose. He may likewise remove existing restrictions; for instance, he may suspend the
customs tariff in force.”).
470 Refer to § 11.22.3.2 (Power to Suspend Customs Duties and Tariffs or Exempt Certain Goods).
471 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 208 (“The occupant also appears to possess other powers
over private business, including the right to prevent hoarding of supplies and raw materials, the prevention of black
markets, the regulation of labor conditions, including strikes, and, in general, the power to return business conditions
in the territory to nearly normal conditions as speedily as possible.”).
472 Refer to § 11.19.1 (Obligation With Respect to the Safeguarding and Preservation of Cultural Property).
473 Refer to § 11.1.2.5 (Occupation and U.N. Security Council Resolutions).
474 1956 FM 27-10 (Change No. 1 1976) ¶364 (“The economy of an occupied country can only be required to bear
the expenses of the occupation, and these should not be greater than the economy of the country can reasonably be
expected to bear.”). See also United States, et al. v. Göring, et al., Judgment, I TRIAL OF THE MAJOR WAR
CRIMINALS BEFORE THE IMT 239 (“The evidence in this case has established, however, that the territories occupied
by Germany were exploited for the German war effort in the most ruthless way, without consideration of the local
economy, and in consequence of a deliberate design and policy. There was in truth a systematic ‘plunder of public
818
11.23.3 Control of Business in Occupied Territory. The Occupying Power may exercise
controls over private business for the purpose of addressing the needs of the inhabitants of the
occupied territory or for military purposes, including by: (1) compelling the continued operation
of a business; (2) granting of business subsidies; (3) closing down a business; or (4) assuming
control and management of a business.
The Occupying Power may compel a business to continue operations if necessary to
serve the needs of the local population or for military purposes.476 Compulsory work of
protected persons, however, must comply with the GC.477
The Occupying Power may take steps to increase production from private business, such
as by granting subsidies out of available governmental revenues from the occupied territory.478
If the Occupying Power determines that the continued operation of a business is
detrimental to the interests of the local population or to the Occupying Power, the Occupying
Power may close down the business.479
The Occupying Power may assume control and management of such a business if
necessary to serve the needs of the local population or for military purposes.480 Title to the
business in such circumstances remains with the legal owner, and if the Occupying Power earns
a profit from the operation of the business, the legal owner must be indemnified, to avoid a
prohibited confiscation of private property.481
or private property’, which was criminal under Article 6(b) of the Charter… . Raw materials and finished products
alike were confiscated for the needs of the German industry.”).
475 Refer to § 11.18.7 (Requisitions of Private Enemy Property).
476 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“If the operations of a given enterprise appear
necessary to the occupant, he may compel the continuation of such operations.”).
477 Refer to § 11.20 (Labor of Protected Persons in Occupied Territory).
478 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207-08 (“If existing private industries fail to supply in
required quantities such commodities as may be urgently needed by the native inhabitants or by occupants own
forces in the occupied territory, it appears to be permissible for him to undertake steps to increase production, if
necessary by subsidization out of available government revenues of the occupied area.”).
479 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“If, on the other hand, such continued operations
appear to be against the interests of the population or of the occupying power, the latter may close down the
enterprise in question.”).
480 Refer to § 11.18.3 (Property Control Measures).
481 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 207 (“An occupant apparently may also lawfully place
under his direct control and management any enterprise which is held by him to be vital for his needs or the needs of
the indigenous population. Such an assumption of management is not expropriation, for title to the property in
question remains vested in its former owner-operator; the occupant merely assumes a temporary control and has to
return the firm when the need for his control has passed. If the occupant earns a profit during his operation of a
private enterprise seized by him he should indemnify the owner in full for the amount of the profit, since the Hague
regulations prohibit the confiscation of private property.”).
819
11.23.4 Regulation of External Trade. The Occupying Power may also regulate foreign
trade, including completely suspending such trade.482 For example, the Occupying Power may
halt the export of precious metals and other valuable items that are readily converted or
exchanged on the international market, including metals such as copper, jewels, and securities.483
Commercial relations between the occupied territory and the remaining territory of the
enemy and its allies are also normally suspended.484 Such suspension may be relaxed through
licenses to trade.485
11.23.5 Exchange Controls, Including Clearing Arrangements, and Asset Controls. The
Occupying Power may also institute exchange controls, including clearing arrangements, and, if
necessary, the freezing or blocking of certain assets, in order to conserve the monetary assets of
the occupied territory, as well as for security purposes.486 For example, the Occupying Power
may regulate, or even prohibit, the flow of funds between the occupied territory and other
countries, under the theory that preventing flight of capital assets is critical to maintaining order
and stability.487 Such measures must not, however, be used to enrich the Occupying Power or
482 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 211-12 (“The occupant possesses a right, based on logic,
to regulate all trade between an occupied area and the outside world
[N]ormally, also, all commercial relations
between the area and its allies as well as the remainder of the sovereign’s territory are suspended as soon as
occupation becomes effective.”).
483 For example, Coalition Provisional Authority Order No. 12, Trade Liberalization Policy, Annex - Prohibited
Exports (Jun. 8, 2003); Coalition Provisional Authority Order No. 54, Trade Liberalization Policy 2004, Annex -
Restricted Exports (Feb. 26, 2004); Coalition Provisional Authority Memorandum No. 8, Exportation of Scrap
Metal Under Order Number 12, Trade Liberalization Policy (CPA/ORD/7 June2003/12), §3 (Jan. 25, 2004)
(“Effective February 1, 2004, metal, including scrap metal, shall not be exported without authorization from the
Ministry of Trade. Prior to February 1, 2004, scrap metal, excluding copper and lead, may be exported without a
license.”).
484 1956 FM 27-10 (Change No. 1 1976) ¶376 (“The commander of the occupying forces will usually find it
advisable to forbid intercourse between the occupied territory and the territory still in the possession of the
enemy.”). Refer to § 12.1.1 (Traditional Rule of Non-Intercourse During War).
485 Refer to § 12.6.3.2 (Licenses to Trade).
486 1956 FM 27-10 (Change No. 1 1976) ¶430 (“The occupant may also institute exchange controls, including
clearing arrangements, in order to conserve the monetary assets of the occupied territory.”). For example, Coalition
Provisional Authority Order No. 93, Anti-Money Laundering Act of 2004, §1 (Jun. 3, 2004) (“The purpose of the
Anti-Money Laundering Law is to secure financial institutions and combat instability by criminalizing the acts of
laundering money, financing crime, financing terrorism, and structuring certain transactions.”); Haw Pia v. China
Banking Corp. (Supreme Ct., Philippines 1949), Annual Digest, 1951, Case No. 203, reprinted in 43 AJIL 821-23
(1949) (“As to the first question, we … hold, that the Japanese military authorities had power, under the
international law, to order the liquidation of the China Banking Corporation and to appoint and authorize the Bank
of Taiwan as liquidator to accept the payment in question, because such liquidation is not a confiscation of the
properties of the bank appellee, but a mere sequestration of its assets which require the liquidation or winding up of
the business of said bank.”) (amendment in AJIL).
487 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 203-04 (“Thus an occupant would appear to possess the
right to regulate and even to prohibit a flow of funds between an occupied territory and other countries, in view of
the likely possibility that a capital flight would disrupt the monetary system and hence the order and safety to be
preserved by the occupant.”).
820
otherwise circumvent the restrictions placed on requisitions, contributions, seizures, and other
measures dealing with property.488
11.23.6 Price Controls in Occupied Territory. The Occupying Power may regulate prices
in the occupied territory. For example, shortages of commodities and increased demand for
certain commodities in the occupied territory may result in a rise in price fluctuations requiring
the Occupying Power to resort to measures designed to maintain prices at a reasonable maximum
level.489 However, the Occupying Power may not use its power over price controls for the
purpose of exploiting the occupied territory to its own illegal advantage.490
488 1956 FM 27-10 (Change No. 1 1976) ¶430 (“Such measures must not, however, be utilized to enrich the
occupant or otherwise circumvent the restrictions place on requisitions, contributions, seizures, and other measures
dealing with property.”). For example, JUDGMENT OF THE INTERNATIONAL MILITARY TRIBUNAL FOR THE TRIAL OF
THE GERMAN MAJOR WAR CRIMINALS (Indictment Count 3(E)(6) (“By a variety of financial mechanisms, they
despoiled all of the occupied countries of essential commodities and accumulated wealth, debased the local currency
systems and disrupted the local economies. They financed extensive purchases in occupied countries through
clearing arrangements by which they exacted loans from the occupied countries. They imposed occupation levies,
exacted financial contributions, and issued occupation currency, far in excess of occupation costs. They used these
excess funds to finance the purchase of business properties and supplies in the occupied countries.”).
489 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 209 (“A majority of jurists writing on the law of
occupation and most military manuals on the subject approve the right of an occupant to regulate prices in occupied
territory. Shortages of every kind of commodity, ruined or damaged crops, lack of imported goods, increased
demands through requisitions or purchases by occupation forces - all these contribute to a rise in the general price
level unless the occupant resorts to measures designed to maintain prices at a reasonable maximum.”).
490 VON GLAHN, THE OCCUPATION OF ENEMY TERRITORY 209-10 (“Yet an unscrupulous occupant may easily
misuse his power over price controls to exploit the occupied territory to his own illegal advantage—as shown
repeatedly during the Second World War.”).
821
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 belligerent’s 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.”).
2 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 enemy’s 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 State’s 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 State’s 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 Belligerent’s Authority to Regulate Intercourse. A
belligerent’s 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 Power’s 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 belligerent’s 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
6 Refer to § 10.8.2 (Departures of Protected Persons From a Belligerent’s 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).
9 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. Non-
hostile 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, booby-
traps, 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 Party’s
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 o’clock 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 Flag—a 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 Germany’s 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
force’s 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 commander’s 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 one’s 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 enemy’s 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 parlementaire’s 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 commander’s 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 parlementaire’s 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 parlementaire’s 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
parlementaire’s 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 parlementaire’s 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 envoy’s
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 adversary’s 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 envoy’s 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 parlementaire’s detention, as well as any other action against the
parlementaire or against any member of the parlementaire’s 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 envoy’s offense, for which his (the commander’s) 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 parlementaire’s party should give or routes that the
parlementaire’s party must take may be agreed upon to help identify the parlementaire’s 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 safe-
conduct.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 commander’s 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 safe-
conducts.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 safe-
conducts.”).
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 force’s 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. Lee’s 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 person’s 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 Army’s 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 officer’s 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 officer’s 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 matériel 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 matériel 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 besieged’s 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 matériel 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 commander’s 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 added—‘This 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 party’s
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 one’s 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 People’s Army; and the Commander of the Chinese People’s 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 d’armes. 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 belligerent’s 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 commanders-
in-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 armistice’s] 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. Barksdale’s 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 scope—when 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
People’s Army and the Commander of the Chinese People’s 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 party’s 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 Kuwait—Operation Desert Storm—was 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
XIII - Naval Warfare
Chapter Contents
13.1 Introduction
13.2 Legal Boundaries of the Oceans
13.3 Overview of Rules for Naval Engagements
13.4 Enemy Warships
13.5 Enemy Merchant Vessels
13.6 Enemy Vessels Exempt From Capture or Destruction
13.7 Submarine Warfare
13.8 Belligerent Control of the Immediate Area of Naval Operations
13.9 Maritime and Airspace Zones: Exclusion, War, Operational, Warning, and
Safety
13.10 Blockade
13.11 Naval Mines
13.12 Torpedoes
13.13 Deception by Naval Forces, Including the Use of Enemy or Neutral Flags
13.1 INTRODUCTION
This Chapter addresses the law of war rules that apply to naval operations, especially
those aspects of naval warfare that differ from warfare on land or in the air. This Chapter also
briefly addresses the legal boundaries of the ocean, which may be relevant to the application of
the law of war.
Navy publications have provided discussion of other public international law relating to
naval operations, including discussion of the law of the sea applicable during peacetime.1
Some topics that are related to neutrality law and that are relevant to the conduct of both
naval and air warfare, such as the conduct of visit and search and neutral commerce, are
addressed in Chapter XV, the Law of Neutrality.2
13.1.1 The Law of the Sea During Armed Conflict. The law of the sea is a body of treaty
and customary international law. Its rules have been developed principally with peacetime
situations in mind. Nothing in the law of the sea impairs a State’s inherent right of individual or
collective self-defense, or rights during armed conflict.3
1 See, e.g., 2007 NWP 1-14M; 1997 NWP 9; 1989 NWP 9.
2 Refer to § 15.13 (Belligerent Right of Visit and Search of Merchant Vessels and Civil Aircraft); § 15.12 (Neutral
Commerce and Carriage of Contraband).
3 Responses of Rear Admiral John E. Crowley, Chief Counsel and Judge Advocate General, U.S. Coast Guard, to
Additional Questions for the Record Submitted by Senator Joseph R. Biden, Jr., SENATE EXECUTIVE REPORT 108-
10, United Nations Convention on the Law of the Sea, 108th Congress, Second Session, 170, 172 (Mar. 11, 2004)
(“It should also be noted that nothing in the Convention restricts the inherent right of individual or collective self-
defense or rights during armed conflict, and the administration is recommending that the United States express such
860
For example, the law of the sea provides that the high seas are reserved for peaceful
purposes.4 However, the use of the high seas for peaceful purposes is understood not to impose
restraints upon military operations that would otherwise be consistent with international law, or
to impair a State’s inherent right of self-defense.5 The use of outer space for peaceful purposes
also has been interpreted in this way.6
As another example, certain rights under the law of the sea (e.g., certain rights of
navigation of vessels, or rights of States with respect to exclusive economic zones) must be
exercised with due regard for the rights and duties of other States.7 To the extent this obligation
applies during armed conflict, what regard would be due would depend on military necessity and
other principles and rules of the law of war, which are specially adapted to the circumstances of
armed conflict.8
13.1.2 The United States and the LOS Convention. The U.N. Convention on the Law of
the Sea (LOS Convention) was opened for signature on December 10, 1982.9
The United States is not a Party to the LOS Convention. The United States did not sign
the LOS Convention when it opened for signature because of several major problems in the
Convention’s deep seabed mining provisions.10 However, in 1983, the United States announced
that it was prepared to accept and act in accordance with the balance of interests reflected in the
LOS Convention relating to traditional uses of the oceans - such as navigation and overflight -
and that the United States would exercise and assert its navigation and overflight rights and
an understanding.”); William H. Taft, Legal Adviser, Department of State, Response to an Additional Question from
Senator Inhofe, United Nations Convention on the Law of the Sea: Hearing Before the Committee on Environment
and Public Works, U.S. Senate, 108th Congress, Second Session, 77 (Mar. 23, 2004) (“As stated in the resolution of
advice and consent now before the Senate, nothing in the Convention impairs the inherent right of individual or
collective self-defense or rights during armed conflict.”).
4 Consider LOS CONVENTION art. 88 (“The high seas shall be reserved for peaceful purposes.”).
5 Commentary—The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation
of Part XI, 94 in MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (“Article 88 reserves the high
seas for peaceful purposes, while articles 141 and 155(2) reserves the Area [which is defined in the LOS Convention
art. 1(1) as “the seabed and ocean floor and subsoil thereof, beyond the limits of national jurisdiction;”] for peaceful
purposes. … None of these provisions creates new rights or obligations, imposes restraints upon military operations,
or impairs the inherent right of self-defense, enshrined in article 51 of the United Nations Charter. More generally,
military activities which are consistent with principles of international law are not prohibited by these, or any other
provisions of the Convention.”).
6 Refer to § 14.10.4 (General Use of Outer Space for Peaceful Purposes).
7 Refer to § 13.2.3.3 (Exclusive Economic Zones (EEZs)); § 13.2.3.4 (High Seas).
8 Refer to § 1.3.2 (The Law of War’s Relationship to Other Bodies of Law).
9 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 UNTS 397.
10 Ronald Reagan, Statement on United States Oceans Policy, Mar. 10, 1983, 1983-I PUBLIC PAPERS OF THE
PRESIDENTS 378 (“Last July, I announced that the United States will not sign the United Nations Law of the Sea
Convention that was opened for signature on December 10. We have taken this step because several major
problems in the Convention's deep seabed mining provisions are contrary to the interests and principles of
industrialized nations and would not help attain the aspirations of developing countries. However, the convention
also contains provisions with respect to traditional uses of the oceans which generally confirm existing maritime law
and practice and fairly balance the interests of all states.”).
861
freedoms on a worldwide basis in a manner that is consistent with the balance of interests
reflected in the LOS Convention.11 For example, consistent with the LOS Convention, the
United States has claimed a 12-nautical mile territorial sea.12 Similarly, the United States has
established a contiguous zone extending 24 nautical miles from the baselines of the United States
determined in accordance with international law, but in no case within the territorial sea of
another nation.13
The Agreement on the Implementation of Part XI of the LOS Convention was adopted on
August 17, 1994.14 Because this agreement addressed the objections that the United States
previously expressed to Part XI of the LOS Convention, President Clinton recommended that the
Senate give its advice and consent to accession to the LOS Convention and to ratification of the
Agreement on the Implementation of Part XI.15 Subsequent administrations have also supported
U.S. accession to the LOS Convention and the ratification of the Agreement on the
Implementation of Part XI of the LOS Convention.16
13.2 LEGAL BOUNDARIES OF THE OCEANS
The legal classifications of ocean areas may be relevant to the application of the law of
war and therefore affect military operations during armed conflict by, for example:
11 Ronald Reagan, Statement on United States Oceans Policy, Mar. 10, 1983, 1983-I PUBLIC PAPERS OF THE
PRESIDENTS 378, 379 (“First, the United States is prepared to accept and act in accordance with the balance of
interests relating to traditional uses of the oceans - such as navigation and overflight. In this respect, the United
States will recognize the rights of other States in the waters off their coasts, as reflected in the Convention, so long
as the rights and freedoms of the United States and others under international law are recognized by such coastal
states. Second, the United States will exercise and assert its navigation and overflight rights and freedoms on a
worldwide basis in a manner that is consistent with the balance of interests reflected in the Convention. The United
States will not, however, acquiesce in unilateral acts of other States designed to restrict the rights and freedoms of
the international community in navigation and overflight and other related high seas uses.”).
12 Refer to § 13.2.2.2 (Territorial Seas).
13 Refer to § 13.2.3.2 (Contiguous Zones).
14 Agreement relating to the implementation of Part XI of the United Nations Convention on the Law of the Sea of
10 December 1982, annex to U.N. General Assembly Resolution 48/263, U.N. Doc. A/RES/48/263 (Aug. 17, 1994).
15 William J. Clinton, Letter of Transmittal, Oct. 7, 1994, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS
CONVENTION 1 (“As described in the report by the Secretary of State, the Agreement meets the objections the
United States and other industrialized nations previously expressed to Part XI. It promises to provide a stable and
internationally recognized framework for mining to proceed in response to future demand for minerals…. I therefore
recommend that the Senate give early and favorable consideration to the Convention and to the Agreement and give
its advice and consent to accession to the Convention and to ratification of the Agreement.”).
16 See, e.g., George W. Bush, Statement on the Advancement of United States Maritime Interests, May 15, 2007,
2007-I PUBLIC PAPERS OF THE PRESIDENTS 583 (“First, I urge the Senate to act favorably on U.S. accession to the
United Nations Convention on the Law of the Sea during this session of Congress. Joining will serve the national
security interests of the United States, including the maritime mobility of our armed forces worldwide. It will secure
U.S. sovereign rights over extensive marine areas, including the valuable natural resources they contain. Accession
will promote U.S. interests in the environmental health of the oceans. And it will give the United States a seat at the
table when the rights that are vital to our interests are debated and interpreted.”); Barack Obama, National Security
Strategy 50 (May 2010) (“As one key effort in the sea domain, for example, we will pursue ratification of the United
Nations Convention on the Law of the Sea.”).
862
• determining the legal boundaries of airspace above those waters;17
• determining whether waters are neutral waters;18
• determining the authority that a belligerent State has with respect to neutral vessels in an
area;19 or
• determining the authority that a neutral State has with respect to belligerent vessels in an
area.20
Waters are often divided analytically between national waters (i.e., internal waters,
territorial seas, and archipelagic waters), which are subject to the sovereignty of a State, and
international waters, which are not subject to the sovereignty of any State.21 In addition, special
rules apply to international straits and archipelagic sea lanes.22
13.2.1 Territory - Notes on Terminology. In some cases, the word “territory” is used to
describe the land, waters, and airspace subject to the sovereignty of a State.23 In other cases, the
word “territory” is used to describe only the land that is subject to the sovereignty of a State.24
Thus, in describing waters that are not subject to the sovereignty of a State (e.g., the
exclusive economic zone and continental shelf, and high seas), the word “territory” should not be
used. Coastal States may exercise limited “sovereign rights” over specific functional areas in the
exclusive economic zone and on the continental shelf, but these rights do not imply sovereignty
over these areas.25
17 Refer to § 14.2 (Legal Boundaries of Airspace).
18 Refer to § 15.7.1 (Waters That Are Considered Neutral).
19 Refer to, e.g., § 13.11.3.5 (Restrictions on Where Naval Mines May Be Placed); § 13.10.2.5 (Limitations on the
Scope of the Blockade).
20 Refer to, e.g., § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic
Sea Lanes).
21 Refer to § 13.2.2 (National Waters); § 13.2.3 (International Waters).
22 Refer to § 15.8 (Passage of Belligerent Vessels and Aircraft Through International Straits and Archipelagic Sea
Lanes).
23 See, e.g., The Ann, 1 F. Cas. 926, 926-27 (C.C.D. Mass. 1812) (Story, J.) (“As the Ann arrived off Newburyport,
and within three miles of the shore, it is clear that she was within the acknowledged jurisdiction of the United States.
All the writers upon public law agree that every nation has exclusive jurisdiction to the distance of a cannon shot, or
marine league, over the waters adjacent to its shores, and this doctrine has been recognized by the supreme court of
the United States. Indeed such waters are considered as a part of the territory of the sovereign.”) (internal citations
omitted).
24 See, e.g., 1955 NWIP 10-2 ¶421 (“According to established international law, each State has exclusive legal
control (jurisdiction) in the air space above its territory, internal waters, and territorial sea.”).
25 See Commentary—The 1982 United Nations Convention on the Law of the Sea and the Agreement on
Implementation of Part XI, 24, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (“Article 56
enumerates the rights of the coastal State in the EEZ. Article 56(1)(a) establishes the sovereign rights of the coastal
State. Article 56(1)(b) sets forth the nature and scope of coastal State jurisdiction with respect to specific matters.
863
13.2.2 National Waters. National waters, which are subject to the sovereignty of a State,
include internal waters, territorial seas, and archipelagic waters.
13.2.2.1 Internal Waters. A State has sovereignty over its internal waters.26
Internal waters are generally understood to be those waters on the landward side of the baseline
of the territorial sea.27 The coastal baseline must be defined in accordance with specific rules of
international law as reflected in the LOS Convention.28
13.2.2.2 Territorial Seas. The sovereignty of a State extends, beyond its land
territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial
sea.29
The United States has claimed a 12-nautical mile territorial sea and recognizes territorial
sea claims of other nations up to a maximum breadth of 12 nautical miles.30 Previously, the
The terms ‘sovereign rights’ and ‘jurisdiction’ are used to denote functional rights over these matters and do not
imply sovereignty. A claim of sovereignty in the EEZ would be contradicted by the language of articles 55 and 56
and precluded by article 58 and the provisions it incorporates by reference.”); id. at 55 (“Article 77 reiterates that the
coastal State has sovereign rights over the continental shelf for the purpose of exploring it and exploiting its natural
resources. The sovereign rights of the coastal State are balanced with provisions protecting the freedom of
navigation and the other rights and freedoms of other States from infringement or unjustifiable interference by the
coastal State. Under article 78, rights of the coastal State over the continental shelf do not affect the legal status of
the superjacent waters or of the airspace above those waters.”).
26 Convention on the Territorial Sea and Contiguous Zone, art. 1, Apr. 29, 1958, 516 UNTS 205, 207-08 (“1. The
sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast,
described as the territorial sea.
2. This sovereignty is exercised subject to the provisions of these articles and to
other rules of international law.”). Consider LOS CONVENTION art. 2 (“1. The sovereignty of a coastal State
extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over
the territorial sea as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to
this Convention and to other rules of international law.”).
27 Convention on the Territorial Sea and Contiguous Zone, art. 5, Apr. 29, 1958, 516 UNTS 205, 210 (“1.Waters on
the landward side of the baseline of the territorial sea form part of the internal waters of the State.”). Consider LOS
CONVENTION art. 8(1) (“Except as provided in Part IV, waters on the landward side of the baseline of the territorial
sea form part of the internal waters of the State.”).
28 Consider LOS CONVENTION art. 5 (“Except where otherwise provided in this Convention, the normal baseline for
measuring the breadth of the territorial sea is the low-water line along the coast as marked on large-scale charts
officially recognized by the coastal State.”).
29 Convention on the Territorial Sea and Contiguous Zone, art. 1, Apr. 29, 1958, 516 UNTS 205, 207-08 (“1. The
sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast,
described as the territorial sea.
2. This sovereignty is exercised subject to the provisions of these articles and to
other rules of international law.”). Consider LOS CONVENTION art. 2 (“1. The sovereignty of a coastal State
extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the territorial sea.
2. This sovereignty extends to the air space over
the territorial sea as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is exercised subject to
this Convention and to other rules of international law.”).
30 See Ronald Reagan, Proclamation 5928: Territorial Sea of the United States of America, Dec. 27, 1988, 54
FEDERAL REGISTER 777 (Jan. 9, 1989) (“The territorial sea of the United States henceforth extends to 12 nautical
miles from the baselines of the United States determined in accordance with international law.”). Consider LOS
CONVENTION art. 3 (“Every State has the right to establish the breadth of its territorial sea up to a limit not
exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention.”).
864
United States claimed a three-nautical mile territorial sea.31 This claim was made in the context
of asserting the rights of the United States as a neutral State.32
Coastal States often make specific maritime claims, but the United States does not
recognize those maritime claims that are not in conformity with customary international law, as
reflected in the LOS Convention.33
13.2.2.3 Archipelagic Waters. An archipelagic State’s sovereignty extends to
certain waters enclosed by archipelagic baselines drawn in accordance with the LOS
Convention.34
An “archipelago” means a group of islands, including parts of islands, interconnecting
water, and other natural features that are so closely interrelated that they form an intrinsic
31 Thomas Jefferson, Secretary of State, Letter to the British Minister Mr. Hammond (Nov. 8, 1793), I MOORE’S
DIGEST 702-03 (“The President of the United States thinking that before it shall be finally decided to what distance
from our sea shores the territorial protection of the United States shall be exercised, it will be proper to enter into
friendly conferences and explanations with the powers chiefly interested in the navigation of the seas on our coasts,
and relying that convenient occasions may be taken for these hereafter, finds it necessary in the mean time, to fix
provisionally on some distance for the present government of these questions. … Reserving, however, the ultimate
extent of this for future deliberation, the President gives instructions to the officers acting under his authority to
consider those heretofore given them as restrained for the present to the distance of one sea league or three
geographical miles from the sea-shores. This distance can admit of no opposition, as it is recognized by treaties
between some of the powers with whom we are connected in commerce and navigation, and is as little, or less, than
is claimed by any of them on their own coasts.”).
32 See, e.g., Douglas W. Kmiec, Acting Assistant Attorney General, Legal Issues Raised by the Proposed
Presidential Proclamation to Extend the Territorial Sea, Oct. 4, 1988, 12 OPINIONS OF THE OFFICE OF LEGAL
COUNSEL 238, 244 (1988) (“The primary example, of course, is the first claim of a three-mile territorial sea made on
behalf of the United States by then-Secretary of State Jefferson in 1793. France, Great Britain, and Spain -- all of
which held territory in North America -- were engaged in maritime hostilities off our Atlantic coast, an extension of
wars ongoing in Europe. As part of an effort to undermine our policy of neutrality, France pressured us to state the
extent of our territorial sea.”); United States v. California, 332 U.S. 19, 33 note 16 (1947) (“[S]hortly after we
became a nation our statesmen became interested in establishing national dominion over a definite marginal zone to
protect our neutrality. Largely as a result of their efforts, the idea of a definite three-mile belt in which an adjacent
nation can, if it chooses, exercise broad, if not complete dominion, has apparently at last been generally accepted
throughout the world, although as late as 1876 there was still considerable doubt in England about its scope and
even its existence.”).
33 DEPARTMENT OF DEFENSE MANUAL 2005.1-M, Maritime Claims Reference, 2 (Jun. 23, 2005) (“The maritime
claims references in this Manual represent claims made by the coastal nations. Some of the claims are inconsistent
with international law. The United States does not recognize those maritime claims that are not in conformity with
customary international law, as reflected in the 1982 United Nations Law of the Sea Convention. Examples include
excessive straight baseline claims, territorial sea claims in excess of 12 nautical miles (nm), and other claims that
unlawfully impede freedom of navigation and overflight.”).
34 Consider LOS CONVENTION art. 49(1) (“The sovereignty of an archipelagic State extends to the waters enclosed
by the archipelagic baselines drawn in accordance with article 47, described as archipelagic waters, regardless of
their depth and distance from the coast.”); LOS CONVENTION art. 47 (“An archipelagic State may draw straight
archipelagic baselines joining the outermost posts of the outermost islands and drying reefs of the archipelago
provided that within such baselines are included the main islands and an area in which the ratio of the area of the
water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.”).
865
geographic, economic, and political entity or that historically have been regarded as such.35 An
“archipelagic State” means a State constituted wholly by one or more archipelagos and may
include other islands.36 The Philippines and Indonesia are examples of archipelagic States.37
13.2.2.4 Innocent Passage of Foreign Vessels Through Territorial Seas and
Archipelagic Waters. During peacetime, all ships enjoy a right of innocent passage through
territorial seas and archipelagic waters.38 A Coastal State, however, has a right of protection,
which includes the right to suspend temporarily in specified areas of its territorial sea the
innocent passage of foreign ships if such suspension is essential for the protection of its
security.39
During armed conflict, the right of innocent passage would not apply between belligerent
States. During armed conflict, belligerent States may restrict the right of neutral vessels to
conduct innocent passage through territorial seas and archipelagic waters belonging to a
belligerent State, such as by establishing maritime zones.40 During armed conflict, neutral States
may regulate, and even prohibit, belligerent warships and prizes from entering their territorial
seas and archipelagic waters.41
13.2.3 International Waters. International waters, which are not subject to the
sovereignty of any State, include contiguous zones, exclusive economic zones (EEZs), and the
high seas. These waters, which are seaward of the territorial sea, are waters in which States have
certain freedoms, such as freedom of navigation and overflight.
35 Consider LOS CONVENTION art. 46(b) (“‘archipelago’ means a group of islands, including parts of islands,
interconnecting water and other natural features which are so closely interrelated that [they] form an intrinsic
geographic, economic, and political entity or which historically have been regarded as such.”).
36 Consider LOS CONVENTION art. 46(a) (“‘archipelagic State’ means a State constituted wholly by one or more
archipelagos and may include other islands;”).
37 Commentary—The 1982 United Nations Convention on the Law of the Sea and the Agreement on Implementation
of Part XI, 22, MESSAGE FROM THE PRESIDENT TRANSMITTING LOS CONVENTION (“A State may enclose
archipelagic waters within archipelagic baselines that satisfy the criteria specified in Article 47. Depending on how
the archipelagic baseline system is established, the following 20 States could legitimately claim archipelagic waters:
Antigua & Barbuda, The Bahamas, Cape Verde, Comoros, Fiji, Grenada, Indonesia, Jamaica, Kiribati (in part),
Maldives, Marshall Islands (in part), Papua New Guinea, Philippines, Saint Vincent and the Grenadines, Sao Tome
& Principe, Seychelles, Solomon Islands (five archipelagos), Tonga, Trinidad & Tobago, and Vanuatu.”).
38 Consider LOS CONVENTION art. 17 (“Subject to this Convention, ships of all States, whether coastal or land-
locked, enjoy the right of innocent passage through the territorial sea.”); LOS CONVENTION art. 52 (“1. Subject to
article 53 and without prejudice to article 50, ships of all States enjoy the right of innocent passage through
archipelagic waters, in accordance with Part II, section 3.”).
39 Consider LOS CONVENTION art. 25(3) (“The coastal State may, without discrimination in form or in fact among
foreign ships, suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if
such suspension is essential for the protection of its security, including weapons exercises. Such suspension shall
take effect only after having been duly published.”).
40 Refer to § 13.9.4 (Use of Zones to Prevent Movement - Exclusion Zones).
41 Refer to § 15.7.2 (A Neutral State’s Regulations Concerning Belligerent Warships and Prizes in Its Waters).
866
13.2.3.1 High Seas Freedoms. States may exercise certain freedoms on the high
seas, such as freedom of navigation and freedom of overflight.42 For example, the high seas
freedoms that warships may exercise include: task force maneuvering, flight operations, military
exercises, surveillance, intelligence gathering activities, and ordnance testing and firing.43 These
rights and freedoms must be exercised with due regard for the interests of other States in their
exercise of the freedom of the high seas and other applicable rights.44
Within a State’s EEZ, other States enjoy high seas freedoms of navigation and overflight,
and other rights, but must exercise those rights with due regard for the rights and duties of the
coastal State.45
13.2.3.2 Contiguous Zones. A contiguous zone is an area extending seaward from
the territorial sea to a maximum distance of 24 nautical miles from the baseline, in which the
coastal State may exercise the control necessary to prevent or punish infringement of its customs,
fiscal, immigration, and sanitary laws and regulations that occurs within its territory or territorial
sea.46
42 Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82, 83-84 (“Freedom of the high seas is exercised
under the conditions laid down by these articles and by the other rules of international law. It comprises, inter alia,
both for coastal and non coastal states: (1) Freedom of navigation; (2) Freedom of fishing; (3) Freedom to lay
submarine cables and pipelines; (4) Freedom to fly over the high seas.”). Consider LOS CONVENTION art. 87(1)
(“The high seas are open to all States, whether coastal or land-locked. Freedom of the high seas is exercised under
the conditions laid down by this Convention and by other rules of international law. It comprises, inter alia, both for
coastal and land-locked States: (a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine
cables and pipelines, subject to Part VI; (d) freedom to construct artificial islands and other installations permitted
under international law, subject to Part VI; (e) freedom of fishing, subject to the conditions laid down in section 2;
(f) freedom of scientific research, subject to Parts VI and XIII.”).
43 2007 NWP 1-14M ¶2.6.3 (“All ships and aircraft, including warship and military aircraft, enjoy complete freedom
of movement and operation on and over the high seas. For warships, this includes task force maneuvering, flight
operations, military exercises, surveillance, intelligence gathering activities, and ordnance testing and firing.”); 1997
NWP 9 ¶2.4.3 (same); 1989 NWP 9 ¶2.4.3 (same).
44 Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82, 84 (“These freedoms, and others which are
recognized by the general principles of international law, shall be exercised by all States with reasonable regard to
the interests of other States in their exercise of the freedom of the high seas.”). Consider LOS CONVENTION art.
87(2) (“These freedoms shall be exercised by all States with due regard for the interests of other States in their
exercise of the freedom of the high seas, and also with due regard for the rights under this Convention with respect
to activities in the Area.”).
45 Consider LOS CONVENTION art. 58 (“1. In the exclusive economic zone, all States, whether coastal or land-
locked, enjoy, subject to the relevant provisions of this Convention, the freedoms referred to in article 87 of
navigation and overflight and of the laying of submarine cables and pipelines, and other internationally lawful uses
of the sea related to these freedoms, such as those associated with the operation of ships, aircraft and submarine
cables and pipelines, and compatible with the other provisions of this Convention. 2. Articles 88 to 115 and other
pertinent rules of international law apply to the exclusive economic zone in so far as they are not incompatible with
this Part.
3. In exercising their rights and performing their duties under this Convention in the exclusive economic
zone, States shall have due regard to the rights and duties of the coastal State and shall comply with the laws and
regulations adopted by the coastal State in accordance with the provisions of this Convention and other rules of
international law in so far as they are not incompatible with this Part.”).
46 Convention on the Territorial Sea and Contiguous Zone, art. 24, Apr. 29, 1958, 516 UNTS 205, 220 (“1. In a zone
of the high seas contiguous to its territorial sea, the coastal State may exercise the control necessary to: (a) Prevent
infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; (b)
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The United States has established a contiguous zone extending 24 nautical miles from the
baselines of the United States determined in accordance with international law, but in no case
within the territorial sea of another nation.47
13.2.3.3 Exclusive Economic Zones (EEZs). An Exclusive Economic Zone (EEZ)
is a zone of limited, generally resource-related rights and jurisdiction adjacent to the territorial
sea and may not extend beyond 200 nautical miles from the baseline.48 The United States has
established an exclusive economic zone.49
Although a coastal State does not have sovereignty over its EEZ, it has certain, generally
economic rights over these areas that must be exercised with due regard for the rights and duties
of other States, such as the high seas freedoms of other States.50
13.2.3.4 High Seas. International law regarding the high seas applies to all parts
of the sea that are not included in the EEZ, territorial sea, internal waters, or archipelagic waters
Punish infringement of the above regulations committed within its territory or territorial sea.”). Consider LOS
CONVENTION art. 33 (“1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal
State may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary
laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations
committed within its territory or territorial sea.
2. The contiguous zone may not extend beyond 24 nautical miles
from the baselines from which the breadth of the territorial sea is measured.”).
47 William J. Clinton, Proclamation 7219: Contiguous Zone of the United States, Aug. 2, 1999, 64 FEDERAL
REGISTER 48701 (Aug. 8, 1999) (“The contiguous zone of the United States extends to 24 nautical miles from the
baselines of the United States determined in accordance with international law, but in no case within the territorial
sea of another nation.”).
48 Consider LOS CONVENTION art. 55 (“The exclusive economic zone is an area beyond and adjacent to the
territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of
the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this
Convention.”); LOS CONVENTION art. 57 (“The exclusive economic zone shall not extend beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured.”).
49 Ronald Reagan, Proclamation 5030: Exclusive Economic Zone of the United States of America, Mar. 10, 1983,
97 STAT. 1557 (“The Exclusive Economic Zone of the United States is a zone contiguous to the territorial sea,
including zones contiguous to the territorial sea of the United States, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands (to the extent consistent with the Covenant and the United Nations
Trusteeship Agreement), and United States overseas territories and possessions. The Exclusive Economic Zone
extends to a distance 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.
In cases where the maritime boundary with a neighboring State remains to be determined, the boundary of the
Exclusive Economic Zone shall be determined by the United States and other State concerned in accordance with
equitable principles.”).
50 Consider LOS CONVENTION art. 56 (“1. In the exclusive economic zone, the coastal State has: (a) sovereign
rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or
non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other
activities for the economic exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds; (b) jurisdiction as provided for in the relevant provisions of this Convention with regard to: (i)
the establishment and use of artificial islands, installations and structures; (ii) marine scientific research; (iii) the
protection and preservation of the marine environment; (c) other rights and duties provided for in this Convention.
2. In exercising its rights and performing its duties under this Convention in the exclusive economic zone, the
coastal State shall have due regard to the rights and duties of other States and shall act in a manner compatible with
the provisions of this Convention. 3. The rights set out in this article with respect to the seabed and subsoil shall be
exercised in accordance with Part VI.”).
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of an archipelagic State.51 No State may validly purport to subject any part of the high seas to its
sovereignty.52 States may exercise certain freedoms on the high seas, such as freedom of
navigation and freedom of overflight.53
13.2.4 Chart Illustrating the Legal Boundaries of the Oceans and Airspace. This chart,
reproduced from the 2007 Commander’s Handbook on the Law of Naval Operations, seeks to
summarize the maximum permissible claims of States with respect to the boundaries of the
oceans and airspace, as reflected in the LOS Convention.54
51 Convention on the High Seas, art. 1, Apr. 29, 1958, 450 UNTS 82 (“The term ‘high seas’ means all parts of the
sea that are not included in the territorial sea or in the internal waters of a State.”). Consider LOS CONVENTION art.
86 (“The provisions of this Part apply to all parts of the sea that are not included in the exclusive economic zone, in
the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. This
article does not entail any abridgement of the freedoms enjoyed by all States in the exclusive economic zone in
accordance with article 58.”).
52 Convention on the High Seas, art. 2, Apr. 29, 1958, 450 UNTS 82 (“The high seas being open to all nations, no
State may validly purport to subject any part of them to its sovereignty.”). Consider LOS CONVENTION art. 89 (“No
State may validly purport to subject any part of the high seas to its sovereignty.”).
53 Refer to § 13.2.3.1 (High Seas Freedoms).
54 2007 NWP 1-14M ¶1.3, Figure 1-1. See also Commentary—The 1982 United Nations Convention on the Law of
the Sea and the Agreement on Implementation of Part XI, 4, Figure 1, MESSAGE FROM THE PRESIDENT
TRANSMITTING LOS CONVENTION; JOINT PUBLICATION 3-32, Command and Control for Joint Maritime Operations,
I-7, Figure I-1 (Aug. 7, 2013); JUDGE ADVOCATE GENERAL’S LEGAL CENTER & SCHOOL, INTERNATIONAL AND
OPERATIONAL LAW DEPARTMENT, OPERATIONAL LAW HANDBOOK 160 (2013).
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13.3 OVERVIEW OF RULES FOR NAVAL ENGAGEMENTS
In general, the rules for conducting attacks, such as bombardments, by naval forces are
the same as those for land or air forces.55
13.3.1 Areas of Naval Warfare. As a general rule, naval forces may attack military
objectives wherever located outside neutral territory.56 In certain cases (e.g., involving
belligerent use of neutral territory as a base of operations), hostilities may be conducted in
neutral territory to redress violations of neutrality.57
13.3.2 Classification of Vessels. The law of land warfare has divided enemy nationals
into different categories in order to facilitate the protection of the civilian population from
hostilities.58 Similarly, the law of naval warfare has sought to classify enemy vessels to protect
those that are civilian or non-combatant in character.
In general, all vessels of an enemy State may be understood to fall into one of three
classes:
(1) warships and naval and military auxiliaries; (2) merchant vessels; and (3) exempt
vessels.
Warships and naval and military auxiliaries are generally liable to attack and capture.59
Merchant vessels are generally liable to capture, but are liable to attack if they forfeit their
protection.60 Exempt vessels are not liable to capture or attack, unless they forfeit their
protection.61
13.3.3 Vessels Entitled to Conduct Attacks. During international armed conflict at sea,
warships are the only vessels that are entitled to conduct attacks.62
Other vessels, such as auxiliary vessels and merchant vessels, are not entitled to conduct
attacks in offensive combat operations.63 All vessels, however, may defend themselves
(including resisting attacks by enemy forces).64
55 Refer to § 5.5 (Rules on Conducting Assaults, Bombardments, and Other Attacks).
56 Refer to § 15.3.1.2 (Inviolability of Neutral Territory - Prohibition on Hostile Acts or Other Violations of
Neutrality).
57 Refer to § 15.4.2 (Belligerent Use of Self-Help When Neutral States Are Unable or Unwilling to Prevent
Violations of Neutrality).
58 Refer to § 4.2 (The Armed Forces and the Civilian Population).
59 Refer to § 13.4 (Enemy Warships).
60 Refer to § 13.5 (Enemy Merchant Vessels).
61 Refer to § 13.6 (Enemy Vessels Exempt From Capture or Destruction).
62 See 1955 NWIP 10-2 ¶500e (“At sea, only warships and military aircraft may exercise belligerent rights.”).
63 2013 GERMAN MANUAL ¶1020 (“The following vessels and persons may not perform acts of naval warfare: -
state ships other than warships, even when carrying out support services for the naval forces, - merchant ships, -
870
13.3.3.1 Entitlement of Vessels to Conduct Attacks During Non-International
Armed Conflict. The United States is not a Party to any treaties that would prohibit the use of
warships and auxiliaries in non-international armed conflict, nor has the United States
recognized such a prohibition in customary international law. Accordingly, State vessels other
than warships may be used to conduct attacks against non-State armed groups during non-
international armed conflict.65 For example, international law does not prohibit auxiliaries from
conducting attacks in a non-international armed conflict. Similarly, a State may use its law
enforcement authorities to address insurgent groups, and there would be no objection to using a
law enforcement vessel as part of operations against insurgents.66
In some cases, the acts of hostility by insurgents on the high seas may be regarded as
piracy.67
13.3.4 Shipwrecked Persons. Shipwrecked persons are hors de combat, and may not be
made the object of attack.68 Shipwrecked persons include personnel involved in forced landings
fishing vessels and other civilian ships, - prize crews of captured ships, - state aircraft other than military aircraft
and - civilian aircraft. The crews of all ships and aircraft are, however, entitled to defend themselves against attacks
by enemy armed forces.”); 1992 GERMAN MANUAL ¶1016 (“The following vessels and persons may not perform
acts of naval warfare: - state ships other than warships, even when carrying out support Services for the naval
forces, - state aircraft other than military aircraft, - merchant ships, - fishing boats and other civil ships, - civil
aircraft, and - prize crews of captured ships. The crews of all ships and aircraft are, however, entitled to defend
themselves against attacks by enemy forces.”).
64 See Institute of International Law, Manual of the Laws of Naval War, art. 12 (1913) (“Apart from the conditions
laid down in Articles 3 [regarding the conversion of public and private vessels into war-ships] and following, neither
public nor private vessels, nor their personnel, may commit acts of hostility against the enemy. Both may, however,
use force to defend themselves against the attack of an enemy vessel.”). Refer to § 4.16.1 (Merchant or Civil Crews
- Conduct of Hostilities).
65 Wolff Heintschel von Heinegg, Methods and Means of Naval Warfare in Non-International Armed Conflicts, 88
U.S. NAVAL WAR COLLEGE INTERNATIONAL LAW STUDIES 211, 219 (2012) (“Under the law of international armed
conflict, only warships are entitled to exercise belligerent rights. This rule goes back to the prohibition of
privateering under the 1856 Paris Declaration. Warships are those vessels that meet the criteria set forth in Articles
2-5 of the 1907 Hague Convention VII, Article 8(2) of the 1958 High Seas Convention and Article 29 of the LOS
Convention. Limitations on the exercise of belligerent rights are most important with regard to interference with
neutral navigation and aviation; thus, neutral vessels and aircraft must accede to such interference only if the
measures are taken by warships. No such limitation applies to non-international armed conflicts vis-à-vis the
parties. It follows from the object and purpose of the rule limiting the exercise of belligerent rights under the law of
naval warfare—i.e., the transparent entitlement of the warship—that the non-State actor will obviously not have
ships that meet the criteria for classification as a warship since one of the criteria is that it be a State vessel. The
government forces may make use of any vessel or aircraft, including, for example, those used for law enforcement
and customs enforcement, in the conduct of hostilities.”).
66 Refer to § 17.4.1 (Ability of a State to Use Its Domestic Law Against Non-State Armed Groups).
67 The Three Friends, 166 U.S. 1 (1897) (“Belligerency is recognized when a political struggle has attained a certain
magnitude and affects the interests of the recognizing power; and in the instance of maritime operations, recognition
may be compelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates.”).
68 Refer to § 5.10.4 (Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or
Shipwreck).
871
at sea by or from aircraft, but do not include, for example, combatant personnel engaged in
attacks.69
As far as military exigencies permit, after each naval engagement, all possible measures
should be taken without delay to search for and collect the wounded, sick, and shipwrecked, and
to recover the dead.70
13.3.5 Surrender by Enemy Vessels. The general rules on the protection of persons hors
de combat, including the rule prohibiting the attack of persons who have surrendered, also apply
to enemy vessels.71 In particular, it is forbidden to make an enemy vessel the object of attack if
it has genuinely, clearly, and unconditionally surrendered, in circumstances in which it is feasible
to accept such surrender.72
Once an enemy vessel has clearly indicated a readiness to surrender, the attack must be
discontinued.73 Indicia of surrender by vessels may include:
• hauling down her flag;
• hoisting a white flag;74
• surfacing (in the case of submarines);75
• stopping engines and responding to the attacker’s signals;76 or
69 Refer to § 7.3.1.2 (Shipwrecked).
70 Refer to § 7.4.1 (GWS-Sea Obligation Regarding the Search, Collection, and Affirmative Protection of the
Wounded, Sick, Shipwrecked, and Dead).
71 Refer to § 5.10.3 (Persons Who Have Surrendered).
72 2007 NWP ¶8.6.1 (“It is forbidden, however, to target an enemy warship or military aircraft that in good faith
unambiguously and effectively conveys a timely offer of surrender.”); 1955 NWIP ¶511c (“It is forbidden to refuse
quarter to any enemy who has surrendered in good faith. In particular, it is forbidden either to continue to attack
enemy warships and military aircraft which have clearly indicated a readiness to surrender or to fire upon the
survivors of such vessels and aircraft who no longer have the means to defend themselves.”).
73 2007 NWP 1-14M ¶8.6.1 (“Once an enemy warship has clearly indicated a readiness to surrender, such as by
hauling down her flag, by hoisting a white flag, by surfacing (in the case of submarines), by stopping engines and
responding to the attacker’s signals, or by taking to lifeboats, the attack must be discontinued.”).
74 Refer to § 12.4 (The White Flag of Truce to Initiate Negotiations).
75 W.T. MALLISON, JR., STUDIES IN THE LAW OF NAVAL WARFARE: SUBMARINES IN GENERAL AND LIMITED WARS
134 (1968) (“The duty to give quarter is, of course, the same in submarine warfare as it is in other naval warfare.
There are undoubtedly unusual problems which occur concerning manifestations of surrender in submarine warfare.
A submarine even when fully surfaced lies low in the water. There may be, consequently, particular difficulties in
observing a submarine's manifestation of surrender. Where a submarine is forced to the surface following depth
charging, it seems reasonable that the submarine's commander should be given an opportunity to surrender unless an
unequivocal intention of fighting it out on the surface is manifested. The attempt of a surface ship to indicate
surrender to a submerged submarine also raises problems. For example, it is clear that the submerged submarine at
periscope depth has only limited visibility.”).
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