Armistices and Other Forms of Suspension of Hostilities
In time of war, when belligerents are at each other’s throats, communications and agreements between the adversaries1 are nevertheless called for. Were this not so, the restoration of peace and succour to the victims or war would be rendered infinitely more difficult. Even in the case of the unconditional surrender of a government or of military forces, some form of agreement is normally concluded.
Legal definitions are nothing but substantive rules of law, and I hope that it will be understood that, if I start these lectures with questions of terminology, this is nothing but setting the stage. As will be seen in these lectures, the terms and definitions that are commonly used are imprecise, tend to mislead, and may ultimately serve no useful purpose. But it is necessary at the outset to define the scope of these lectures and to explain without a high degree of legal precision some terms that will be used in the course of the discussion that follows.
The term “armistice” is defined in Article 36 of the Hague Regulations of 1907,2 which were recognized by the Nuremberg Tribunal as having passed into customary international law:3
“An armistice suspends military operations by mutual agreement between the belligerent parties.”
This helpful guidance is only the beginning. Article 37 refines the concept:
“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.”
However, such terms as “cease-fire” and “truce” and “suspension of arms” are not used in the Hague Regulations and are not defined there. These terms likewise describe agreements whereby the belligerents suspend hostilities, normally on a local basis and for a shorter duration than in the case of the armistice. In military usage, as reflected in particular in 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 a “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.
The Hague Regulations of 1907 do not even define another term for a suspension of military operations—the “capitulation”. Article 35 merely provides:
“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. A capitulation which is “agreed upon” is essentially an instrument of surrender, which likewise suspends military operations and may be local—that is, applying to a segment of the armed forces of a belligerent—or general, applying to all of the armed forces of the State and perhaps to the whole structure of government as well.
This looseness of terminology has, if anything, been exacerbated in recent years, largely as the result of the activities of the Security Council and other organs of the United Nations. Within a few years of its establishment, the United Nations had evolved what one commentator described as “a rich and varied” vocabulary:
“Terms like ‘cease-fire’, ‘standstill’, ‘cessation of hostilities’, ‘cessation of all acts of armed force’, ‘discontinuance of military operations’, ‘truce’, ‘armistice’ and several others are used with little discrimination and with no attempt at definition. ”
The “truce” is the more ancient institution, known to the ancient world, assuming renewed importance in the Middle Ages, and passing down through the centuries to our times.
As has been seen, “armistice” is the only term defined in the Hague Regulations. Today, the term “armistice” with its connotations of large-scale international conflict and of war unregulated by the United Nations Charter, no longer finds widespread acceptance or use. The contemporary employment of such terms as “truce” and “cease-fire” in large measure reflects the proscription of the “use of force against the territorial integrity or political independence of any State”, a “breach of the peace”, and an “act of aggression” under the Charter, as well as the existence of international machinery under the United Nations Charter to deal, however, ineffectively, with the wrongful use of force in international relations. It will be necessary to return to this development at a later stage of these lectures.
What all these forms of agreement have in common is that they bring about a suspension, but not a definitive termination ofhostilities and a restoration ofpeace. It is true that, once the hostilities have been brought to a halt, the parties may not again resort to the use of force and peace will be re-established de facto, but it is not the armistice or truce that restores peace but later expressions of intent upon the part of the belligerents to terminate the state of war or of belligerency or of suspended hostilities.
In these lectures, I shall use the term “capitulation” or “instrument ofsurrender” to describe any instrument by which the surrender of forces or even of a government may be brought about. The term “armistice” will be taken to refer to any other form of suspension of hostilities, whether general or local, and is generally intended to evoke the traditional law. The expression “cease-fire” will be applied for the most part to the practice since the Second World War, which has been strongly influenced by the law ofthe United Nations Charter. It may be necessary from time to time to use other terms for some particular purpose, but every attempt will be made to avoid the proliferation of categories.
If there is such a thing as the archaeology of international law, certainly armistices and truces may be thought to be amongst the most ancient institutions of international law. The law and practices surrounding these institutions today bear an extremely close resemblance to the understandings regarding these agreements that existed in the ancient world. The modern State system is a far cry from the Greek city-States, but today, as then, agreements for the suspension of hostilities are variously concluded between political entities that are not States, between the armed forces or units ofthe armed forces, or between groups ofindividuals. The agreement responds to the imperatives of bringing a halt to hostilities between bands of men, and questions of statehood and of governments and of recognition fade into relative insignificance. Truces (eKegeigla or a “holding of hands”) were concluded in ancient Greece for the burial ofthe dead, for the exchange or release of prisoners, and as a preliminary to the conclusion of peace. The holding of games was also the occasion for the conclusion of truces which would permit everyone, including belligerents, to have unrestricted access to the games. Resumption of hostilities during these times was looked upon as a grave breach of faith—even as the world looked upon the bloodthirsty conduct of the terrorists at the Munich Olympic Games. The Romans, too, arrived at armistices or truces (indutiae) for the same purposes for which they had been employed by the Greeks and are employed in our times. Some of these were of long duration, extending up to a century.
In the Middle Ages, according to Keen, the truce “was not an intermission so much as an absolute suspension of war”. As Baldus put it, “if a truce is made even for one day, then the war sleeps, and neither side may make any changes in its dispositions”. The legal problems with which jurists struggled are much the same as those that trouble us today. A truce was a binding engagement, and if a prince violated it, the other party was released from its obligation—a view paralleling our modern view that “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”. But what if the violations of the truce were committed by the acts of private persons? To this Baldus replied that a truce is not void because of minor violations; “it becomes void only when it is broken on such a scale and in such a way as to be irreparable”.
And so the law and practice passes on down through the centuries, still in its oddly contemporary colouring. Ayala devotes an important part of his treatise De Jure et Officiis Bellicis et Disciplina Militari Libri IIIto keeping faith with the enemy and to treaties and truces concluded by the belligerents. Grotius echoes the view of Baldus that the state of war “sleeps” but is not dead, and so a new declaration of war is not necessary when the truce has run its course. He, too, concerns himself with the circumstances under which violations of the agreement give rise to a right to resume hostilities. Vattel agrees with Grotius that even during a war, there must be “intercourse of war” and under that rubric deals with truces, the right of safe-conduct, and the ransoming ofprisoners, which similarly had been grouped by other great authorities of the past.20 The treatment is pragmatic and down-to-earth;
the law of truces is seen as a body of techniques and of understandings, rather than as a formal set of rules deriving from the law of antiquity.
By the time that Francis Lieber prepared the first modern codification of the law of war, the law was sufficiently developed that he could devote thirteen articles to armistices and capitulations, most of them reflecting what would even today be regarded as sound and subsisting law. He forms a bridge between the ancient and the contemporary, but even if we cross that bridge and venture far into the past, we still find ourselves in the presence of a body of law which, although separated from us by centuries, would still be workable and helpful in contemporary armed conflicts.
-  The United States Army Field Manual 27—10, The Law of Land Warfare (1956) uses theexpressions “armistice” (whether general or local) and “suspension of arms”, the latter of which itdefines as “a form of armistice concluded between commanders of military forces for some localmilitary purpose, such as to bury the dead, to collect the wounded, to arrange for exchange ofprisoners,or to enable a commander to communicate with his government or superior officer” (para. 485). Heeresdienstvorschrif der deutschen Bundeswehr Nr. 100 “Truppenfuhrung (TF)”, Teil 5 (HDv100/5), “Volkerrechtliche Grundsatze der Landkriegfuhrung”, paras. 130—143, likewise uses onlythe terms “armistice” and “capitulation”.
-  The United States Law of Land Warfare, para. 484, specifies that: “It is always a condition of a local armistice that a considerable part of the forces and theregion of war must be included and that the cause for which it is concluded is not merelysome pressing local interest, as in the case of a suspension of arms . . . , but one of a moregeneral character, such as a general exhaustion of the opposing belligerent in one part of thetheater of war. ”
-  Mohn, “Problems of Peace Supervision”, in International Conciliation, No. 478 (1952), p. 49at p. 51.
-  United Nations Charter, Art. 2, para. 4.
-  Id., Art. 39. It is true that the hostilities in the Middle East in 1948 were brought to a halt by a“cease-fire and truce”, which became effective on 18 July 1948 (Cablegram from the United NationsMediator... and Replies Thereto, UN Doc. S/907 (1948)), to be followed by the General ArmisticeAgreements, signed at Rhodes, 24 Feb. 1949 (e.g., Agreement between Israel and Egypt, UNTS,Vol. 42, p. 251). Rosenne points out that, in the context of that conflict, a truce is essentially negativeand imposed on the parties by the Security Council, whereas the armistices were negotiated andcontained “positive injunctions”. Israel’s Armistice Agreements with the Arab States (1951), p. 25.
-  See, Bastid, “Le Cessez-le-feu”, in Societe Internationale de droit penal militaire et de droit de laguerre, [Actes du] 6e Congres international, La Haye, 22—25 mai 1973 (1974), p. 19 at p. 23.
-  Phillipson, The International Law and Custom of Ancient Greece and Rome (1911), Vol. 2,pp. 279-289.
-  Id. at pp. 289-295.
-  The Laws ofWar in the Late Middle Ages (1965), p. 207.
-  Ibid. 14 Id. at p. 211.
-  15 Hague Regulations of 1907, Art. 40.
-  16 Keen, op. cit., supra, note 12 at pp. 212-214.
-  17 De Jure et Officiis Bellicis et Disciplina Militari Libri III (1582), Book I, Chaps. 6 and 7.
-  18 De Jure Belli ac Pacis Libri Tres (1646), Book I, Chap. XXI, I, 2.
-  19 Id, Book I, Chaps. XXI, XI.
-  20 Le Droit des Gens, ou Principes de la Loi Naturelle (1758), Book III, Chap. XVI.
-  Instructions for the Government of Armies of the United States in the Field, General OrdersNo. 100, April 24, 1863, Arts. 135—147, in Friedman, The Law of War: A Documentary History(1972), Vol. 1,p. 158 at pp. 182-183.