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subject that the besieger must cease all extension, perfection, or advance of his attacking works as much so as from attacks by main force.
* But as there is a difference of opinion among martial jurists, whether the besieged have a right to repair breaches or to erect new works of defense within the place during an armistice, this point should be determined by express agreement between the parties.”
“ 145. When an armistice is clearly broken by one of the parties, the other party is released from all obligation to observe it.
“ 146. Prisoners taken in the act of breaking an armistice must be treated as prisoners of war, the officer alone being responsible who gives the order for such a violation of an armistice. The highest authority of the belligerent aggrieved may demand redress for the infraction of an armistice.
“ 147. Belligerents sometimes conclude an armistice while their plenipotentiaries are met to discuss the conditions of a treaty of peace; but plenipotentiaries may meet without a preliminary armistice; in the latter case the war is carried on without any
abatement.” Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
“ ARTICLE XXXVI. An armistice suspends military operations by mutual agreement between the belligerent parties. If its duration is not fixed, the belligerent parties can resume operations at any time, provided always the enemy is warned within the time agreed upon, in accordance with the terms of the armistice.
ARTICLE XXXVII. An armistice may be general or local. The first suspends all military operations of the belligerent States; the second, only those between certain factions of the belligerent armies and in a fixed radius.
" ARTICLE XXXVIII. An armistice must be notified officially, and in good time, to the competent authorities and the troops. Hostilities are suspended immediately after the notification, or at a fixed date.
" ARTICLE XXXIX. It is for the Contracting Parties to settle, in the terms of the armistice, what communications may be held, on the theatre of war, with the population and with each other.
“ARTICLE XL. Any serious violation of the armistice by one of the parties gives the other party the right to denounce it, and even, in case of urgency, to recommence hostilities at once.
“ARTICLE XLI. A violation of the terms of the armistice by private individuals acting on their own initiative, only confers the right of demanding the punishment of the offenders, and, if necessary, indemnity for the losses sustained."
Convention respecting the Laws and ('ustoms of War on Land, The Hague,
July 29, 1899, 32 Stat. II. 1820, 1821.
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."
Mr. Webster, Sec. of State, to Mr. Thompson, Apr. 5, 1842, ( Webster's
• This I shall add by the way, that truces, and such like agreements, do immediately oblige both parties consenting from the time they are concluded; but the subjects on both sides then begin to be bound, when the truce receives the form of law, that is, when it has been solemnly notified, which being done, it immediately begins to have the power to bind the subjects. But that power, if the publication is made only in one place, shall not at that instant extend itself throughout the whole dominion; but upon a convenient time allowed, to give notice in every place. And if any thing in the mean time be done by the subjects contrary to the truce, they shall not be punishable for it. The contracting parties, however, are not the less bound to repair those damages."
Grotius, De Jure Belli ac Pacis, Book III., cap. XXI. $ v.
"A truce, or suspension of arms, does not terminate the war, but it is one of the commerria belli which suspends its operations. These conventions rest upon the obligation of good faith, and as they lead to pacific negotiations, and are necessary to control hostilities, and promote the cause of humanity, they are sacredly observed by civilised nations.
“A particular truce is only a partial cessation of hostilities, as between a town and an army besieging it. But a general truce applies to the operations of the war; and if it be for a long or indefinite period of time, it amounts to a temporary peace, which leaves the state of the contending parties, and the questions between them, remaining in the same situation as it found them."
Abdy's Kent, 377.
“ Sec. 402. A suspension of hostilities binds the contracting parties, and all acting immediately under their direction, from the time it is concluded; but it must be duly promulgated in order to have a force of legal obligation with regard to the other subjects of the belligerent states; so that if, before such notification, they have committed any act of hostility, they are not personally responsible, unless their ignorance be imputable to their own fault or negligence. But as the supreme power of the state is bound to fulfill its own engagements, or those made by its authority, express or implied, the government of the captor is bound, in the case of a suspension of hostilities by sea, to restore all prizes made in contravention of the armistice. To prevent the disputes and difficulties arising from such questions, it is usual to stipulate in the convention of armistice, as in treaties of peace, a prospective period within which hostilities are to cease, with a due regard to the situation and distance of places.
“ Sec. 403. Besides the general maxims applicable to the interpretation of all international compacts, there are some rules peculiarly applicable to conventions for the suspension of hostilities. The first of these peculiar rules, as laid down by Vattel, is that each party may do within his own territory, or within the limits prescribed by the armistice, whatever he could do in time of peace. Thus either of the belligerent parties may levy and march troops, collect provisions and other munitions of war, receive re-enforcements from his allies, or repair the fortifications of a place not actually besieged.
“ The second rule is, that neither party can take advantage of the truce to execute, without peril to himself, what the continuance of hostilities might have disabled him from doing. Such an act would be a fraudulent violation of the armistice. For example:- In the case of a truce between the commander of a fortified town and the army besieging it, neither party is at liberty to continue works, constructed either for attack or defence, or to erect new fortifications for such purposes. Nor can the garrison avail itself of the truce to introduce provisions or succors into the town, through the passages or in any other manner which the besieging army would have been competent to obstruct and prevent, had hostilities not been interrupted by the armistice.
“The third rule stated by Vattel, is rather a corollary from the preceding rules than a distinct principle capable of any separate application. As the truce merely suspends hostilities without terminating the war, all things are to remain in their antecedent state in the places, the possession of which was specially contested at the time of the conclusion of the armistice.
“ It is obvious that the contracting parties may, by express compact, derogate in any and every respect from these general conditions."
Dana's Wheaton, $$ 402-403, pp. 498 499.
“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.”
Instructions for the Government of Armies of the United States in the
Field, General Orders, No. 100, April 24, 1863, War of the Rebellion,
The agreement for an armistice should contain a clear announcement of the exact time when it begins and ends. As a rule the terms of these instruments are precise, but in default of definite stipulations on various points we may extract a certain amount of guidance from the general rules of international law. They lay down that as soon as an armistice is concluded it should be notified to all concerned, and add that if no definite time has been fixed for the suspension of hostilities, they cease immediately after the notification.”
Lawrence, Principles of International Law, 455.
By Article II. of the treaty of Guadalupe Hidalgo, it was stipulated that immediately upon the signature of the treaty a suspension of hostilities should be arranged, and that the constitutional order should be reestablished so far as the circumstances of military occupation permitted. A military convention for this purpose was concluded in the City of Mexico, February 29, 1818, and was ratified by Major-General Butler on the 5th of the following month, and was proclaimed the next day. It provided for the absolute and general suspension of arms and hostilities, stipulating that the troops of neither side should advance beyond the positions then occupied by them. The convention consisted of seventeen articles, and entered into much detail.
One of the most remarkable examples of a suspension of hostilities which, though in terms temporary, was in effect permanent, was the armistice concluded between Spain and the allied republics on the west coast of South America, at Washington, in 1871. By this armistice the contracting parties were forbidden to renew hostilities against each other, except on three years' notice given through the Government of the United States of an intention to do so, and it was further stipulated that during the continuance of the armistice all restrictions on neutral commerce which were incident to a state of war should cease.
See supra, $ 1007.
By the protocol between the United States and Spain signed at Washington August 12, 1898, provision was made for the immediate suspension of hostilities as a preliminary to the conclusion of peace. The blockades were immediately raised, and on August 17, 1898, the Department of State, in response to inquiries made on behalf of the Spanish Government, declared (1) that no obstacle would be interposed to the reestablishment of the postal service by Spanish steamers between Spain on the one side and Cuba, Porto Rico, and the Philippines on the other; (2) that no objection would be made to the importation of supplies in Spanish bottoms to Cuba and the Philippines, but that it had been decided to reserve the importation of supplies from the United States to Porto Rico to American vessels; and (3) that a Spanish steamer, chartered by French merchants and then lying at Havre, would be permitted to proceed to Philadelphia and to take mineral oil for industrial purposes, provided it was not to be transported to Porto Rico. These answers, it was added, were given with the understanding that American vessels would not for the time being be excluded from Spanish ports, as well as upon the understanding that, if hostilities should at any time be renewed, American vessels that might happen to be in Spanish ports would be allowed thirty days in which to load and depart with noncontraband cargo, and that any American vessel which, prior to the renewal of hostilities, should have sailed for a Spanish port would be permitted to enter such port and discharge her cargo, and afterwards forthwith to depart without molestation, and, if met at sea by a Spanish ship, to continue her voyage to any port not blockaded. These conditions were accepted by the Spanish Government, and commercial intercourse was accordingly restored.
Mr. Moore, Act. See. of State, to M. Cambon, French ambass., Aug. 17,
1898, For. Rel. 1898, 802; M. Cambon to Mr. Moore, Sept. 6, 1898, id.
“ Immediately upon the conclusion of the protocol I issued a proclamation of August 12th suspending hostilities on the part of the United States. The necessary orders to that end were at once given by telegraph. The blockade of the ports of Cuba and San Juan de Porto Rico was in like manner raised. On the 18th of August the muster out of 100,000 volunteers, or as near that number as was found to be practicable, was ordered."
President McKinley, annual message, Dec. 5, 1898, For. Rel. 1898, Lxv.
After the conclusion of the protocol of Aug. 12, 1898, the United States, answering an inquiry made by the French ambassador in behalf of the captain-general of Cuba, stated that it did not, under the existing circumstances, object to officers of the Spanish army returning singly to Spain by way of the United States.
For. Rel. 1898, 808, 809.
Notwithstanding the signing of the protocol and the suspension of hostilities, a state of war still exists between this country and Spain, as "peace can only be declared pursuant to the negotiations between the authorized peace commissioners.
In the distribution of supplies to the destitute inhabitants of Cuba, the commanding officers may use either the officers of the Army or such other volunteer agencies as may be available for the purpose.