Duhaime's Law Dictionary


Capitulation Definition:

Abandonment by one belligerent to another, of a defined place, usually by way of a negotiated arrangement.

Related Terms: Surrender, War

A capitulation, like a surrender, places the inhabitants and private property of the surrendering state under a soft umbrella of protection; soft because in times of war, fine legal distinctions are impossible to enforce.

But there is judicial authority for the premise. In The Resolution, the United States Court of Appeal maintained that property captured from opponents that had capitulated had to be returned. Similarly, The Venice.

Nonetheless, in the 14th edition of Kent's Commentaries, and relying on Emerich de Vattel, the author refers to the international custom ("general usage") that in war, private property is not to taken or destroyed without compensation except where required by military exigencies "or when captured in places carried by storm and which repelled all ouvertures for a capitulation" adding:

"If the conqueror goes beyond these limits wantonly, or when it is not clearly indispensable to the just purposes of war, and seizes private property of pacific persons for the sake of gain, and destroys private dwellings, or public edifices devoted to civil purposes only, or makes war upon monuments of art and models of taste, he violates the modern usages of war, and is sure to meet with indignant resentment, and to be held up to the general scorn and detestation of the world."

This is the agreeable definition of capitulation proposed by international law jurists Robert Bledsoe and Boleslaw Boczek in their 1987 dictionary on the subject matter:

"Capitulation: An agreement between commanders of belligerent forces for the surrender of a body of troops, a fortress, or other defended locality, or of a district of the theater of operations.....

"A capitulation may also be arranged by the political authorities of the belligerents, in which case it may contain other than military stipulations."

In their 1901 law dictionary, Shumaker and Longsdorf define capitulation:

"The treaty which determines the conditions under which a fortified place is abandoned to the commanding officer of the army which besieges it."

capitulateIn his 1960 article, Vladimir Dedijer wrote:

"While surrender is a unilateral legal act, capitulation is a bilateral legal one, a consensuel contract.

"It can happen that a troop in the open field or in a besieged fortress or a warship can realize that any further resistance is useless and the commander of the unit may decide that surrender is necessary, but cannot be executed before preliminary actions. These preliminary actions can be varied in character, and most often surrender depends on the conditions, and the proposal of the defeated is transmitted through parlementaries to the victorious side with the aim of reaching agreement on this act between both sides. Thus in such a case the surrender is not executed instantly, but takes place only on the basis of a previous agreement of both sides. In this case, when a mutual agreement on the future surrender is concluded, there appears an agreement on capitulation.

"Accordingly, the obligation to surrender is the essential content of an agreement on capitulation and not the surrender itself. The surrender is executed only on the basis of this agreement....

"Capitulation can be concluded with or without conditions. Conditional capitulation would occur when the capitulating party obtained for itself more favourable conditions than from a simple surrender. Any other capitulation is unconditional, that is, a capitulation in which the capitulating party accepts all the obligations issuing from the general laws of war in case of capitulation, as well as in the case when graver conditions are accepted through these obligations which are imposed by the other party. Unconditional surrender is concluded when the defeated party which wishes to surrender, expresses the wish to the other side to make an agreement about the surrender, without laying down any terms, that is, under the general conditions provided by the laws of war for such a situation, assuming that the other side accepts this.

"In case of a capitulation with conditions, that side which has decided to surrender in the course of negotiations for the conclusion of the agreement on capitulation, can request special stipulations which will ensure it more favourable treatment than the one granted by the stipulations of the laws of war. This category includes the so called honourable capitulations, according to which officers can retain their arms, etc."

REFERENCES:

  • Bledsoe, Robert and Boczek, Boleslaw, The International Law Dictionary (Oxford: ABC-CLIO, 1987), page 357. However, this same law book suggests that: "a capitulation must be distinguished from unconditional surrender, which need not be effected on the basis of an instrument signed by both parties and is not in agreement." This cannot be good law. Any surrender, unconditional or otherwise, necessarily implies the accord of the defeated belligerent.
  • Dedijer, Vladimir, Legal Character of the Capitulation of Norwegian Armed Forces on June 10, 1940, 30 Nordisk Tidsskrift Int'l Ret 39 (1960)
  • Kent, James, Commentaries on American Law (1826-30)
  • Ships Taken at Genoa, 165 E.R. 650 (1803)
  • The Resolution, 2 Dall. 1.
  • The Venice, 2 Wall. 258
  • Walter A. Shumaker, Walter and Longsdorf, George Foster, The Cyclopedic Dictionary of Law Comprising the Terms and Phrases of American Jurisprudence, Including Ancient and Modern Common Law, International Law, and Numerous Select Titles From the Civil Law, the French and the Spanish Law, Etc., Etc. With an Exhaustive Collection of Legal Maxims, (St. Paul, Minnesota: Keefe-Davidson Law Book Co., 1901), page

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