Note: This chapter addresses communication related to warfare and not political negotiations undertaken with a view to resolving an armed conflict.
Rule 66. Commanders may enter into non-hostile contact through any means of communication. Such contact must be based on good faith.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
Most military manuals stress that the need may arise, for humanitarian or military reasons, for commanders to enter into contact with the adverse party, in particular to conclude local arrangements dealing with such issues as the search for the wounded, sick and dead, the disposal of the dead, exchange of prisoners, evacuation of persons from a besieged area, passage of medical and religious personnel and flights of medical aircraft. At higher levels, agreements may be concluded to establish a hospital or safety zone, a neutralized zone or a demilitarized zone.[1]
Some military manuals specify that combatants themselves may not enter into contact with the enemy.[2] The Military Handbook of the Netherlands, for example, states that “only a commander may decide to negotiate with the adverse party”.[3]
Practice indicates that communication may be carried out by various means, via intermediaries known as parlementaires but also by telephone and radio.[4] A parlementaire is a person belonging to a party to the conflict who has been authorized to enter into communication with another party to the conflict. The traditional method of making oneself known as a parlementaire is by advancing bearing a white flag.[5] This traditional method has been found to be still valid, as attested by various military manuals.[6] In addition, practice recognizes that the parties may appeal to a third party to facilitate communication, in particular protecting powers or an impartial and neutral humanitarian organization acting as a substitute, in particular the ICRC, but also international organizations and members of peacekeeping forces. Collected practice shows that various institutions and organizations have acted as intermediaries in negotiations both in international and non-international armed conflicts, and that this is generally accepted.[7]
Several military manuals emphasize that in any communication with the adversary good faith must be scrupulously observed.[8] This implies that negotiators accepted as such by both sides must be respected and that negotiated agreements must be respected or else they constitute unlawful deception. Without good faith, negotiation on the battlefield is both dangerous and of little use. The parties have to be able to rely on the assurance given by the other side concerning the safety of their negotiators and compliance with what was agreed (pacta sunt servanda as an application of the general principle of good faith). The principle of good faith applies by definition in both international and non-international armed conflicts and implies that the white flag, which indicates a desire to communicate,[9] must be respected in both types of conflict. The detailed rules applicable to the sending and receiving of parlementaires are a specific application of the principle of good faith (see Rules 67–69).
It is a long-established rule of customary international law that commanders are not obliged to receive parlementaires, but it is prohibited to declare beforehand that no parlementaire will be received. This is stated in the Brussels Declaration, the Oxford Manual and the Hague Regulations.[10] It has been restated in many military manuals.[11] Some of these manuals are applicable in, or have been applied in, non-international armed conflicts.[12] No official contrary practice was found.
[1] See, e.g., the military manuals of Belgium (cited in Vol. II, Ch. 19, § 5), Canada (ibid., § 8), Croatia (ibid., § 10), Germany (ibid., § 12), Hungary (ibid., § 13), Italy (ibid., § 15), Kenya (ibid., § 16), Republic of Korea (ibid., § 17), Madagascar (ibid., § 19), Netherlands (ibid., § 20), New Zealand (ibid., § 21), Nigeria (ibid., § 22), Spain (ibid., § 23), Switzerland (ibid., § 24), United Kingdom (ibid., §§ 25–26) and United States (ibid., § 27).
[2] See, e.g., the military manuals of Belgium (ibid., § 4), Burkina Faso (ibid., § 6), Cameroon (ibid., § 7), Congo (ibid., § 9), France (ibid., § 11), Lebanon (ibid., § 18) and Netherlands (ibid., § 20).
[3] Netherlands, Military Handbook (ibid., § 20).
[4] See, e.g., the military manuals of Belgium (ibid., § 4), Canada (ibid., § 8), Croatia (ibid., § 10), Germany (ibid., § 12), Hungary (ibid., § 13), Italy (ibid., §§ 14–15), Republic of Korea (ibid., § 17), Madagascar (ibid., § 19), New Zealand (ibid., § 21), Spain (ibid., § 23), United Kingdom (ibid., § 25) and United States (ibid., § 27) and the reported practice of Colombia (ibid., § 31), Rwanda (ibid., § 36) and Zimbabwe (ibid., § 41).
[5] For a definition of a parlementaire, see, e.g., Brussels Declaration, Article 43 (ibid., § 95), Oxford Manual, Article 27 (ibid., § 96) and Hague Regulations, Article 32 (ibid., § 94) and the military manuals of Argentina (ibid., § 98), Belgium (ibid., §§ 99–101), Canada (ibid., § 103), Germany (ibid., § 104), Italy (ibid., § 105), Netherlands (ibid., § 106), New Zealand (ibid., § 107), Nigeria (ibid., § 108), Spain (ibid., §§ 109–110), Switzerland (ibid., § 111), United Kingdom (ibid., § 112), United States (ibid., § 113) and Yugoslavia (ibid., § 114).
[6] See, e.g., the military manuals of Argentina (ibid., § 98), Belgium (ibid., §§ 99–101), Cameroon (ibid., § 102), Italy (ibid., § 105), Netherlands (ibid., § 106), New Zealand (ibid., § 107), Nigeria (ibid., § 108), Spain (ibid., § 110), Switzerland (ibid., § 111), United Kingdom (ibid., § 112), United States (ibid., § 113) and Yugoslavia (ibid., § 114).
[7] See, e.g., the military manuals of Germany (ibid., § 12), Madagascar (ibid., § 19), Spain (ibid., § 23) and United States (ibid., § 27) and the reported practice of Colombia (ibid., § 31), Georgia (ibid., § 33), Philippines (ibid., § 35), Rwanda (ibid., § 36) and two States (ibid., §§ 42 and 44).
[8] See, e.g., the military manuals of Argentina (ibid., § 3), Belgium (ibid., § 5), Kenya (ibid., § 16), New Zealand (ibid., § 21), United Kingdom (ibid., §§ 25–26) and United States (ibid., § 27).
[9] See, e.g., the military manuals of Australia (ibid., §§ 50–51), Belgium (ibid., § 53), Benin (ibid., § 54), Canada (ibid., §§ 56–57), Colombia (ibid., § 58), Dominican Republic (ibid., § 59), Ecuador (ibid., § 60), Italy (ibid., § 65), Kenya (ibid., § 66), Republic of Korea (ibid., § 67), Madagascar (ibid., § 68), Netherlands (ibid., §§ 69–70), New Zealand (ibid., § 71), Nigeria (ibid., § 72), South Africa (ibid., § 74), Togo (ibid., § 75), United Kingdom (ibid., §§ 76–77), United States (ibid., §§ 78–80) and Yugoslavia (ibid., § 81); the practice of the United Kingdom (ibid., § 88); the reported practice of China (ibid., § 85) and Rwanda (ibid., § 87).
[10] Brussels Declaration, Article 44 (ibid., § 125); Oxford Manual, Article 29 (ibid., § 126); Hague Regulations, Article 33 (ibid., § 124).
[11] See, e.g., the military manuals of Argentina (ibid., § 128), Belgium (ibid., §§ 129–130), Canada (ibid., § 131), Germany (ibid., § 132), Italy (ibid., § 133), Kenya (ibid., § 134), Netherlands (ibid., § 135), New Zealand (ibid., § 136), Nigeria (ibid., § 137), Spain (ibid., §§ 138–139), Switzerland (ibid., § 140), United Kingdom (ibid., §§ 141–142), United States (ibid., § 143) and Yugoslavia (ibid., § 144).
[12] See, e.g., the military manuals of Germany (ibid., § 132), Italy (ibid., § 133), Kenya (ibid., § 134) and Yugoslavia (ibid., § 144).