International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second EditionOppenheim, L. (Lassa)
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International Law. A Treatise. Volume 2 (of 2): War and Neutrality. Second Edition
Oppenheim, L. (Lassa)
International law
§ 220. Although the outbreak of war brings all negotiations between
belligerents to an end, and although no negotiations are as a rule
conducted during war, certain circumstances and conditions make it
necessary or convenient for the armed forces of belligerents to enter
into negotiations with each other for various purposes. Since time
immemorial a white flag has been used as a symbol by an armed force
wishing to negotiate with the enemy, and always and everywhere it has
been considered a duty of the enemy to respect this symbol. In land
warfare the flag of truce is made use of in the following manner.[435]
An individual--soldier or civilian--charged by his force with the task
of negotiating with the enemy, approaches the latter either carrying the
flag himself, or accompanied by a flag-bearer and, often, also by a
drummer, a bugler, or a trumpeter, and an interpreter. In sea warfare
the individual charged with the task of negotiating approaches the enemy
in a boat flying the white flag. The Hague Regulations have now by
articles 32 to 34 enacted most of the customary rules of International
Law regarding flags of truce without adding any new rule. These rules
are the same for land warfare as for sea warfare, although their
validity for land warfare is now grounded on the Hague Regulations,
whereas their validity for sea warfare is still based on custom only.
[Footnote 435: See Hague Regulations, article 32.]
[Sidenote: Treatment of Unadmitted Flag-bearers.]
§ 221. As a commander of an armed force is not, according to article 33
of the Hague Regulations, compelled to receive a bearer of a flag of
truce, a flag-bearer who makes his appearance may at once be signalled
to withdraw. Yet even then he is inviolable from the time he displays
the flag to the end of the time necessary for withdrawal. During this
time he may neither be intentionally attacked nor made prisoner.
However, an armed force in battle is not obliged to stop its military
operations on account of the approach of an enemy flag-bearer who has
been signalled to withdraw. Although the latter may not be fired upon
intentionally, should he be wounded or killed accidentally, during the
battle, no responsibility or moral blame would rest upon the belligerent
concerned. In former times the commander of an armed force could inform
the enemy that, within a certain defined or indefinite period, he would
under no circumstances or conditions receive a flag-bearer; if, in spite
of such notice, a flag-bearer approached, he did not enjoy any
privilege, and he could be attacked and made prisoner like any other
member of the enemy forces. But this rule is now obsolete, and its place
is taken by the rule that a commander must never, except in a case of
reprisals, declare beforehand, even only for a specified period, that he
will not receive a bearer of a flag of truce.[436]
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