亨利-梅因：国际法Lecture 10

in closing a war is， sometimes， to find an authority capable of making peace. This difficulty was much felt by the Germans after they had proceeded a great length in their conquest of France in the last war. They made up their minds that the only authority which could make a treaty on the part of France which Frenchmen would respect was a National Assembly， and therefore before making peace they insisted that such an Assembly should be elected.

　　I think it may be useful to say a few words on the treaties of peace by which war is nowadays brought to an end. In modern times a peace is always preceded by an armistice， and an armistice by a suspension of arms， which is only a shorter armistice. The rule laid down by the international lawyers is that a state of war is brought to an end by a treaty of peace or by a general truce. A treaty of peace puts an end to the war and absolutely abolishes the subject of it； a general truce puts an end to the war， but leaves undecided the question which gave occasion to it. In modern times these general truces have fallen out of use. They were common enough in the Middle Ages， especially between the Turks and their Christian enemies， because the religion of neither party permitted the combatants to conclude a definite treaty of peace. It has always been laid down that treaties and general truces can only be concluded by the sovereign power of a state， and not that of any other authority. An armistice is defined as a partial truce. The power to conclude an armistice is essential to the fulfilment by the commanding officer of his official duties， and therefore he is presumed to have such power delegated to him by his sovereign without any special command. This presumption of authority is held to be so strong that it cannot be rebutted by any act of the sovereign. If an officer makes an armistice in disobedience to orders received from his sovereign， he is punishable by that sovereign； but the sovereign is bound by the armistice， inasmuch as the enemy could not be supposed to have known of the limitation of authority i

mposed on the officer.

　　It is suggested by several of the international writers， and it is probable， that armistices first arose from the truce or truces of God which were repeatedly proclaimed by the Church. These truces took many and very singular forms. Thus one famous truce of God was to begin every Wednesday at sunset， and last till the following Monday at sunrise. It was to continue from Advent to the octaves of Epiphany， and from Quinquagesima Sunday to the octaves of Easter. If any person broke the truce and refused to give satisfaction he was excommunicated， and after the third admonition the bishop who excommunicated him was not to admit him into communion under the penalty of deprivation. The truce was confirmed at many councils， and especially at the Lateran Council of 1179. Some of the regulations were extended into England， and Wednesday and Friday were set apart as days for keeping peace. It is exceedingly likely that these temporary and limited truces accustomed the warlike communities of those days to temporary suspensions of hostilities， and armistices manifestly grew into considerable favour. But they also gave rise， and indeed they give rise still， to a number of rather difficult questions. We find a greet number of rules laid down as to what belligerent parties might do or might not do during an armistice. The views taken of these duties in modern times are decidedly contradictory. On the one side it is held that all equivocal acts of hostility should be abstained from during an armistice whether they come， or do not， within the description of acts capable of being interrupted by the enemy； while on the other hand it is contended that， according to the practice of modern warfare， belligerents have a perfect right to alter the disposition of their troops， construct entrenchments， repair breaches， or do any acts by which they may think fit to prepare themselves for the resumption of hostilities. The violation of an armistice by either of the contending parties gives to the other the right to put an end to it； but its violation by private individuals only confers the right to demand the punishment of the guilty persons. The question is one of great practical difficulty， and in all the Manuals the advice is given that the greatest caution should be observed in the case of an armistice to specify the acts which are or are not to be permitted during its continuance.

　　Another question which， evidently， was thought to present great difficulties， was the date of the commencement and the time of the termination of an armistice. Supposing it to be made for a certain number of days —— that is， from the 1st of May to the 1st of August —— questions have been raised whether the days named are both included or excluded. The usual mode of reckoning in England as legal time is to include the first day and exclude the last. （consequently， in the above-mentioned case， according to English law， the truce begins at the moment on which the 30th of April ends and ceases at the moment at which the 31st of July ends. To avoid difficulties， it should be stated from the 1st of May inclusive to the 1st of August inclusive， if it is intended to include the 1st of August； or better still to begin at a certain hour on one day， and to end at a certain hour on another. In the case of a short armistice the number of hours should be stated； and it is advisable in all cases where an armistice has been arranged， to agree to indicate by some signal for example， the hoisting of a flag or the firing of a cannon —— both the commencement and the termination of the armistice. An armistice， it is to be remembered， is only a qualified peace， and the state of war continues， though active hostilities are suspended. This anomalous state of things leads， in the absence of express stipulation， to considerable difficulty in ascertaining what is allowed to be done or continued to be done. Apart from particular stipulation， the general rule

seems to be that a belligerent cannot take advantage of an armistice to do any aggressive act which but for the armistice he could not have done without danger to himself. For example， in the case of an armistice between a besieging army and a besieged town， the besiegers must not continue their works against the town， and the besieged are forbidden to repair their walls， raise fresh fortifications， or introduce succours or reinforcements into the town. The last dangerous question which arose in Europe， arose on one of the class of terms which I have been examining.

　　Before closing this lecture it win be useful to note the substance of the statements made in the modern Manuals in respect to a number of terms which are in much use in this part of military operations， but which are very loosely employed by civilians and even by historical writers. First as to what is called a Capitulation. A capitulation is an agreement for the delivery of a besieged place or forces divided in the field into the hands of the enemy. The commanders on either side are invested with popover to agree to the terms of a capitulation， inasmuch as the possession of such powers is necessary to the proper exercise of their functions. On the other hand， the extent of their powers is limited by the necessity for their exercise. In the surrender of a place the questions at issue are the immediate possession of the place itself， and the fate of the garrison. A capitulation， therefore， must be limited to these questions. It may declare that the garrison is to surrender unconditionally as prisoners of war， or to be entitled to march out with all the honours of war. It may also provide that the soldiers comprising the garrison are not to serve again during the war. Further conditions for the protection of the inhabitants and of their privileges， and for their immunity from pillage or contribution， may fairly be put into a capitulation. A stipulation in a capitulation to the effect that the garrison should never again bear arms against the forces of the conquering state， or that the sovereignty of the town should change hands， would be invalid， inasmuch as powers for such extensive purposes belong only to the sovereign power of the State， and cannot ever be presumed to be delegated to inferior officers.

　　A few words will not be thrown away on Flags of Truce. Such a flag can only be used legitimately for the purpose of entering into some arrangement with the enemy. If adopted with a view surreptitiously to obtain information as to the enemy's forces， it loses its character of a flag of truce and exposes its bearer to the punishment of a spy. Great caution， however， and the most conclusive evidence are held to be necessary before the bearer of such a flag can be convicted as a spy. The bearer of a flag of truce， at the same time， should not be allowed without permission to approach sufficiently near to secure any useful information. When an army is in position， the bearer of a flag of truce should not， without leave， be permitted to pass the outer line of signals， or even to approach within the range of their guns.

　　When a flag of truce is sent from a detachment during an engagement， the troop from which it is sent should halt and cease firing. The troop to which it is sent should， if the commander is willing to receive it， signal to that effect and also cease firing； but it must be understood that firing during an engagement does not necessarily cease on the appearance of a flag of truce， and that the parties communicating with such flags cannot complain if those who sent them should carry on the firing. When it is intended to refuse admission to a flag of truce， the bearer should， as soon as possible， be signalled to retire； and if he do not obey the signal， he may be fired

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