Practice Relating to Rule 68. Precautions while Receiving Parlementaires
Section B. Detention of parlementaires
Hague Regulations (1899)
Article 33 of the 1899 Hague Regulations provides: “In case of abuse [a chief to whom a parlementaire is sent] has the right to detain the parlementaire temporarily.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (II) with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, Article 33.
Hague Regulations (1907)
Article 33 of the 1907 Hague Regulations provides: “In case of abuse [a commander to whom a parlementaire is sent] has the right to detain the parlementaire temporarily.”
Regulations concerning the Laws and Customs of War on Land, annexed to Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 33.
Brussels Declaration
Article 44 of the 1874 Brussels Declaration states: “If the parlementaire has rendered himself guilty of … an abuse of confidence [taking advantage of his stay within the radius of the enemy’s position to the prejudice of the latter], [the commander] has the right to detain him temporarily.”
Project of an International Declaration concerning the Laws and Customs of War, Brussels, 27 August 1874, Article 44.
Oxford Manual
Article 31 of the 1880 Oxford Manual provides: “If a parlementaire abuses the trust reposed in him he may be temporarily detained.”
The Laws of War on Land, adopted by the Institute of International Law, Oxford, 9 September 1880, Article 31.
Oxford Manual of Naval War
Article 45 of the 1913 Oxford Manual of Naval War provides: “In case it abuses its privileges, [the commanding officer to whom a cartel ship is sent] has the right to hold the cartel ship temporarily.”
The Laws of Naval War Governing the Relations between Belligerents, adopted by the Institute of International Law, Oxford, 9 August 1913, Article 45.
Argentina
Argentina’s Law of War Manual (1969) states: “In case of abuse [of his position] by the parlementaire, he may be temporarily detained.”
Argentina, Leyes de Guerra, RC-46-1, Público, II Edición 1969, Ejército Argentino, Edición original aprobado por el Comandante en Jefe del Ejército, 9 May 1967, § 6.002.
Belgium
Belgium’s Field Regulations (1964) provides that a parlementaire can be detained temporarily if he/she has collected information.
Belgium, Règlement sur le Service en Campagne, Règlement IF 47, Ministère de la Défense Nationale, Etat-Major Général, Force Terrestre, Direction Supérieure de la Tactique, Direction Générale du Planning, Entraînement et Organisation, 1964, § 22.
Belgium
Belgium’s Law of War Manual (1983) states: “The commander who receives a parlementaire … may retain him temporarily, if the parlementaire takes unfair advantage of his mission.”
Belgium, Droit Pénal et Disciplinaire Militaire et Droit de la Guerre, Deuxième Partie, Droit de la Guerre, Ecole Royale Militaire, par J. Maes, Chargé de cours, Avocat-général près la Cour Militaire, D/1983/1187/029, 1983, p. 41.
Canada
Canada’s LOAC Manual (1999) provides:
If the parlementaire remains within enemy lines after being ordered to withdraw, he loses his inviolability and may be made a PW [prisoner of war]. Detention may occur if the parlementaire has abused the position of parlementaire, for example, by collecting information covertly. It is not an abuse of the position for the parlementaire, however, to report on observations made.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 14-1, § 9.
Canada
Canada’s LOAC Manual (2001) states in its chapter entitled “Communications and contact between opposing forces”:
7. After making contact with the adverse party, the parlementaire must obey any orders that a party provides regarding the entry of that party’s lines, and must withdraw if so instructed. During the withdrawal and return to the parlementaire’s own lines, the parlementaire continues to enjoy inviolability and may not be attacked. When ordered to withdraw, the parlementaire must be given a reasonable time in which to do so. Failure to withdraw results in loss of protection and the parlementaire may then be fired upon. If the parlementaire remains within enemy lines after being ordered to withdraw, he loses his inviolability and may be made a PW [prisoner of war]. Detention may occur if the parlementaire has abused the position of parlementaire, for example, by collecting information covertly. It is not an abuse of the position for the parlementaire, however, to report on observations made.
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9. … Any measure that may be taken against the parlementaire or attending members of the party must be reported to the sending belligerent without delay.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1402.7 and 9.
Germany
Germany’s Military Manual (1992) states:
A parlementaire may be temporarily detained if he has accidentally acquired information the disclosure of which to the adversary would jeopardize the success of a current or impending operation of the friendly armed forces. In this case, the parlementaire may be detained until the operation has been completed.
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 228.
Italy
Italy’s IHL Manual (1991) provides that, if information of a military character has unintentionally come to the knowledge of a parlementaire, he/she can be detained for the time the disclosure of information would be dangerous. Moreover: “The same measure applies to a parlementaire who, during his mission, has intentionally collected information.”
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 58.
The manual also stresses that if parlementaires present themselves without an authorization in writing, the military authority can retain them by adopting the necessary security measures and request instructions to commanding superiors. These superiors have the possibility of retaining accredited parlementaires if they have other “equivalent” elements on which to rely.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. I, § 52.
New Zealand
New Zealand’s Military Manual (1992) states:
If the parlementaire stays within enemy lines after being ordered to withdraw he loses his inviolability and may be made a prisoner of war. He may similarly be detained and tried if there is prima facie evidence that he has abused his position as a parlementaire, for example by collecting information surreptitiously. It is not an abuse of his position for the parlementaire to report back anything he may have observed.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 406(7).
Nigeria
Nigeria’s Manual on the Laws of War states that the “parlementaire can be arrested if he abuses his privileges or succeeds unintentionally in gathering information that may be of benefit to the enemy”.
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 24.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
The parlementaire and persons who accompany him may be temporarily detained if they misuse their status (collecting intelligence, humiliating the honour and dignity of the receiving party and similar cases).
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 68.
Spain
Spain’s LOAC Manual (1996) provides that a commander may temporarily detain a parlementaire if he/she abuses his/her condition.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, 2.6.c.(1).
Spain
Spain’s LOAC Manual (2007) states: “If [parlementaires] abuse their status … commanders have the right to detain them temporarily.”
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 2.6.c.(1).
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “The commander to whom a parlementaire is sent … has the right, in case of abuse, to retain him temporarily.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 14; see also Article 15, commentary.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
A commander has the right to detain a parlementaire temporarily if the latter abuses his position. In addition, a commander has, by a customary rule of international law, the right to retain a parlementaire so long as circumstances require, if the latter has seen anything, knowledge of which might have adverse consequences for the receiving forces, or if his departure would coincide with movements of troops whose destination or employment he might guess.
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 412.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states:
A commander has the right to detain a parlementaire temporarily if the latter abuses his position. In addition, a commander has, by a customary rule of international law, the right to retain a parlementaire so long as circumstances require, if the latter has seen anything, knowledge of which might have adverse consequences for the receiving forces. It is not, however, an abuse of his position for the parlementaire to report back anything he may have observed.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 10.9.
United States of America
The US Field Manual (1956) states:
In case of abuse, [the commander to whom a parlementaire is sent] has the right to detain the parlementaire temporarily.
…
In addition to the right of detention for abuse of his position, a parlementaire may be detained in case he has seen anything or obtained knowledge which may be detrimental to the enemy, or if his departure would reveal information on the movement of troops. He should be detained only so long as circumstances imperatively demand, and information should be sent at once to his commander as to such detention, as well as of any other action taken against him or against his party.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 463 and 465.
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Military Manual (1988) provides:
A parlementaire or the persons escorting him can be temporarily detained if they have seen, without abusing the mission of parlementaire, something or collected information that could cause damage to the party receiving the parlementaire or if they could discover the movement of troops during return.
The parlementaire and his escort will be detained only as long as that information could cause damage to the side that received them.
Yugoslavia, Socialist Federal Republic of, Propisi o Primeri Pravila Medjunarodnog Ratnog Prava u Oruzanim Snagama SFRJ, PrU-2, Savezni Sekretarijat za Narodnu Odbranu (Pravna Uprava), 1988, § 132.
Italy
Italy’s Law of War Decree (1938), as amended in 1992, states that a parlementaire may be temporarily detained if military information has unintentionally come to his/her knowledge.
Italy, Law of War Decree, 1938, as amended in 1992, Article 72.
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Hague Peace Conference (1899)
The Report of the Second Commission of the 1899 Hague Peace Conference stated that Article 33 of the 1899 Hague Regulations “deals with the right that every belligerent has … to detain [a parlementaire] in case of abuse. All these rules conform to the necessities and customs of war.”
James B. Scott (ed.), The Reports of the Hague Conferences of 1899 and 1907, Clarendon Press, Oxford, 1917, p. 147.
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ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that a commander “may retain … [the bearer of a white flag or similar persons] temporarily”.
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 540.
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