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
[Footnote 436: This becomes quite apparent from the discussion of the
subject at the First Peace Conference; see Martens, _N.R.G._ 2nd Ser.
XXVI. p. 465; and _Land Warfare_, § 234.]
[Sidenote: Treatment of Admitted Flag-bearers.]
§ 222. Bearers of flags of truce and their parties, when admitted by the
other side, must be granted the privilege of inviolability. They may
neither be attacked nor taken prisoners, and they must be allowed to
return safely in due time to their own lines. On the other hand, the
forces admitting enemy flag-bearers need not allow them to acquire
information about the receiving forces and to carry it back to their own
corps. Flag-bearers and their parties may, therefore, be blindfolded by
the receiving forces, or be conducted by roundabout ways, or be
prevented from entering into communication with individuals other than
those who confer officially with them, and they may even temporarily be
prevented from returning till a certain military operation of which they
have obtained information is carried out. Article 33 of the Hague
Regulations specifically enacts that a commander to whom a flag of truce
is sent "may take all steps necessary to prevent the envoy taking
advantage of his mission to obtain information." Bearers of flags of
truce are not, however, prevented from reporting to their corps any
information they have gained by observation in passing through the enemy
lines and in communicating with enemy individuals. But they are not
allowed to sketch maps of defences and positions, to gather information
secretly and surreptitiously, to provoke or to commit treacherous acts,
and the like. If nevertheless they do any of these acts, they may be
court-martialed. Articles 33 and 34 of the Hague Regulations
specifically enact that a flag-bearer may temporarily be detained in
case he abuses his mission for the purpose of obtaining information, and
that he loses all privileges of inviolability "if it is proved beyond
doubt that he has taken advantage of his privileged position to provoke
or commit an act of treachery." Bearers of white flags and their party,
who approach the enemy and are received, must carry[437] some
authorisation with them to show that they are charged with the task of
entering into negotiations (article 32), otherwise they may be detained
as prisoners, since it is his mission and not the white flag itself
which protects the flag-bearer. This mission protects every one who is
charged with it, notwithstanding his position in his corps and his
status as a civilian or a soldier, but it does not protect a deserter.
The latter may be detained, court-martialed, and punished, notice being
given to his principal of the reason of punishment.[438]
[Footnote 437: Article 32 of the Hague Regulations confirms this
customary rule by speaking of an individual who is "authorised" by one
of the belligerents to enter into communication with the other.]
[Footnote 438: See Hall, § 190.]
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