Non-International Armed Conflicts in International Law Second Edition Yoram Dinsh Eyn 2024 Scribd Download

Download as pdf or txt
Download as pdf or txt
You are on page 1of 64

Full download test bank at ebookmeta.

com

Non-international armed conflicts in international


law Second Edition Yoram Dinsh■eyn

For dowload this book click LINK or Button below

https://ebookmeta.com/product/non-international-
armed-conflicts-in-international-law-second-
edition-yoram-dinsh%e1%b9%adeyn/

OR CLICK BUTTON

DOWLOAD EBOOK

Download More ebooks from https://ebookmeta.com


More products digital (pdf, epub, mobi) instant
download maybe you interests ...

Non-International Armed Conflicts in International Law


2nd Edition Dinstein

https://ebookmeta.com/product/non-international-armed-conflicts-
in-international-law-2nd-edition-dinstein/

International law and armed conflict fundamental


principles and contemporary challenges in the law of
war 2nd Edition Blank

https://ebookmeta.com/product/international-law-and-armed-
conflict-fundamental-principles-and-contemporary-challenges-in-
the-law-of-war-2nd-edition-blank/

English Grammar Exercises with answers Part 4 Your


quest towards C2 1st Edition Daniel B. Smith

https://ebookmeta.com/product/english-grammar-exercises-with-
answers-part-4-your-quest-towards-c2-1st-edition-daniel-b-smith/

Armed Conflict and Forcible Displacement Individual


Rights under International Law 1st Edition Elena
Katselli Proukaki (Editor)

https://ebookmeta.com/product/armed-conflict-and-forcible-
displacement-individual-rights-under-international-law-1st-
edition-elena-katselli-proukaki-editor/
International law in Australia Third Edition (Writer On
International Law) Emily Crawford (Editor)

https://ebookmeta.com/product/international-law-in-australia-
third-edition-writer-on-international-law-emily-crawford-editor/

International Law Text Cases and Materials Second


edition Ademola Abass

https://ebookmeta.com/product/international-law-text-cases-and-
materials-second-edition-ademola-abass/

Drug Control and International Law (Routledge Research


in International Law) 1st Edition Daniel Wisehart

https://ebookmeta.com/product/drug-control-and-international-law-
routledge-research-in-international-law-1st-edition-daniel-
wisehart/

Small Island States & International Law (Routledge


Research in International Law) 1st Edition Carolin
König

https://ebookmeta.com/product/small-island-states-international-
law-routledge-research-in-international-law-1st-edition-carolin-
konig/

Cambridge International AS and a Level Law Second


Edition Jayne Fry

https://ebookmeta.com/product/cambridge-international-as-and-a-
level-law-second-edition-jayne-fry/
NON-INTERNATIONAL ARMED
CONFLICTS IN INTERNATIONAL LAW

This dispassionate analysis of the legal implications of non-international


armed conflicts explores the rules regulating the conduct of internal
hostilities, as well as the consequences of intervention by foreign States,
the role of the UN Security Council, the effects of recognition, State
responsibility for wrongdoing by both Governments and insurgents, the
interface with the law of human rights and the notion of war crimes. The
author addresses both conceptual and specific issues, such as the com-
plexities of 'failing' States or the recruitment and use of child soldiers. He
makes use of the extensive case law of international courts and tribunals,
in order to identify and set out customary international law. Much
attention is also given to the contents of available treaty texts. This new
updated edition takes into account the latest events in terms of the
practice of States, judicial pronouncements and UN Security Council
resolutions.

  is a Member of the Institut de Droit International and


a Professor Emeritus at Tel-Aviv University, Israel. He is a former
President of the University (1991–9), as well as former Rector and former
Dean of the Faculty of Law. He served twice as the Stockton Professor of
International Law at the U.S. Naval War College in Newport, Rhode
Island. He was also a Humboldt Fellow at the Max Planck Institute for
Comparative Public Law and International Law in Heidelberg, a Meltzer
Visiting Professor of Law at New York University and a Visiting Professor
of Law at the University of Toronto.

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
NON-INTERNATIONAL
ARMED CONFLICTS IN
INTERNATIONAL LAW
 

YORAM DINSTEIN

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
University Printing House, Cambridge CB2 8BS, United Kingdom
One Liberty Plaza, 20th Floor, New York, NY 10006, USA
477 Williamstown Road, Port Melbourne, VIC 3207, Australia
314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India
79 Anson Road, #06–04/06, Singapore 079906

Cambridge University Press is part of the University of Cambridge.


It furthers the University’s mission by disseminating knowledge in the pursuit of
education, learning, and research at the highest international levels of excellence.

www.cambridge.org
Information on this title: www.cambridge.org/9781108836180
DOI: 10.1017/9781108864091
© Yoram Dinstein 2014, 2021
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2014
Second Edition 2021
Printed in the United Kingdom by TJ Books Ltd. Padstow, Cornwall
A catalogue record for this publication is available from the British Library.
Library of Congress Cataloging-in-Publication Data
Names: Dinstein, Yoram, author.
Title: Non-international armed conflicts in international law / Yoram Dinstein,
Tel-Aviv University.
Description: Second edition. | Cambridge, United Kingdom ; New York, NY : Cambridge
University Press, 2021. | Includes bibliographical references and index.
Identifiers: LCCN 2020037951 (print) | LCCN 2020037952 (ebook) | ISBN 9781108836180
(hardback) | ISBN 9781108799447 (paperback) | ISBN 9781108864091 (epub)
Subjects: LCSH: War (International law) | Intervention (International law) | War victims–Legal
status, laws, etc. | War crimes. | War.
Classification: LCC KZ6355 .D56 2021 (print) | LCC KZ6355 (ebook) | DDC 341.6–dc23
LC record available at https://lccn.loc.gov/2020037951
LC ebook record available at https://lccn.loc.gov/2020037952
ISBN 978-1-108-83618-0 Hardback
ISBN 978-1-108-79944-7 Paperback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
vi 
III. The Dichotomy of NIACs and IACs 26
IV. The Territorial Dimensions of NIACs 28
A. A NIAC as an Armed Conflict within the Territory of a
Single State 28
(a) The Internal Character of a NIAC 28
(b) Extraterritorial Spillover 30
(i) General Spin-off Effects 30
(ii) Cross-Border NIAC Hostilities in a
Neighbouring Country 30
(iii) NIAC Hostilities on the High Seas 31
(iv) Cyberspace 33
(c) The ‘War’ on Terrorism 33
(d) Divided Nations 34
V. A Clash between Organized Armed Groups inter se 35
A. Disappearance of the Government (a ‘Failing State’) 35
B. Governmental Weakness 36
C. Governmental Inaction 36
D. The Law Applicable 37
VI. Sufficient Organization 38
A. Insurgency Distinguished from Mob Violence 38
B. Insurgents as a Party to the Conflict 39
VII. Protracted Violence 41
A. The Temporal Element 41
B. How Much Time Is Required? 42
VIII. Intensity of the Fighting 43
A. Terrorist Activities 43
B. Intensity as an Independent Criterion 44
C. Indicia of Intensity 45
IX. The End of a NIAC 46
A. The Termination of Hostilities 46
B. A Peace Accord as a Requirement for the End of a NIAC 48
C. The Objectives and Standing of a Peace Accord 50
D. Post-Peace Accord Hurdles 51

3 Thresholds and Interaction of Armed Conflicts 53


I. The Three Thresholds of Armed Conflicts 53
A. Below-the-Threshold Violence 53
B. Over the First Threshold 54
C. Over the Second Threshold 55
(a) Government Armed Forces 56
(b) Dissident Armed Forces 57

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
 vii
(c) Other Organized Armed Groups under
Responsible Command 57
(i) A ‘Group’ 58
(ii) An ‘Armed’ Group 59
(iii) An ‘Organized’ Armed Group 59
(iv) The Five Factors of Organization 61
(d) Control over Territory 62
(e) Sustained and Concerted Military Operations 64
(f ) Capacity to Implement AP/II 65
D. Over the Third Threshold 65
II. Interaction between NIACs 67
A. Two or More NIACs within the Territory of the
Same State 68
B. Two or More NIACs within the Territories of
Adjacent States 68
III. Interaction between NIACs and IACs 71
A. Simultaneous Combinations of NIACs and IACs 71
B. Consecutive Combinations of NIACs and IACs 72

4 Fighters, Civilians and LONIAC 76


I. Fighters 76
A. Definition 76
B. Governmental Forces 76
C. Insurgent Organized Armed Groups 77
II. Civilians 79
III. Loss of Civilian Protection from Attack 79
A. The Concept of Direct Participation in Hostilities 79
B. Specific Activities 81
C. The Actors 82
IV. Why Are Insurgent Armed Forces Bound by LONIAC? 83
A. The Axiom 83
B. The Rationale 84
(a) Treaty Law 84
(i) Non-State Bearers of Obligations and Rights 85
(ii) Non-State Actors and Treaties 89
(iii) Agreements between Governments and Insurgents 91
(b) Customary International Law 93

5 Foreign Intervention in a NIAC 96


I. The Principle of Non-Intervention 96
A. The Principle and the Practice 96
B. ‘R2P’ 97

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
viii 
II. Military Intervention by a Foreign State in Support of the
Incumbent Government 98
A. The Requirement of Consent 98
(a) Consent as a Door-Opener to Foreign Intervention 98
(b) The Position of the Institut de Droit International 99
(c) The General Practice of States 101
(d) The Validity and Parameters of Consent 103
(e) Consent by Treaty 105
(f ) Revocation of Consent 106
(g) Constraints 107
B. ‘Failing States’ 108
III. Military Intervention by a Foreign State against the
Incumbent Government 109
A. Use of de facto Organs 109
B. Military Assistance to Insurgents 109
IV. Military Intervention by a Foreign State against Insurgents without the
Consent of the Incumbent Government 111
A. The Duty of Vigilance 111
B. ‘Extraterritorial Law Enforcement’ 112
V. The Hazards of Foreign Interventions 113
VI. The Applicable Law 115
A. LONIAC or IAC jus in bello? 115
B. Some Outstanding Problems 117
VII. Intervention in a NIAC by the Security Council 118
A. The UN Charter 118
B. The Case of Libya 121
C. The Range of the Security Council’s Intervention 122
D. UN Monitoring and Peacekeeping Forces 124

6 Recognition 127
I. Recognition of an Insurgent Government 127
A. Conditions for the Existence of a State and a Government 127
B. Recognition of a New Government 128
C. Issues Related to Recognition of Governments 130
(a) The Three Main Scenarios 130
(b) Formation of an Insurgent Government 131
(c) Only One Government Can Be Recognized at Any
Given Time 131
(d) Unlawful, Premature and Artificially
Prolonged Recognition 132
(e) De facto Recognition 133
(f ) Implied Recognition 134
(g) Recognition as a Step towards Intervention in a NIAC 135
(h) Democracy and Constitutionality 137

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
 ix
(i) Avoiding Recognition 138
(j) Government-in-Exile 139
D. Action by the Security Council 140
II. Recognition of a New State 141
III. ‘Recognition of Belligerency’ 142
A. ‘Recognition of Belligerency’ by the
Incumbent Government 142
B. ‘Recognition of Belligerency’ by Foreign States 144
C. Implied ‘Recognition of Belligerency’ 145
(a) Implied Recognition by the Incumbent Government
of Ruritania 146
(b) Implied Recognition by a Foreign State 148
IV. ‘Recognition of Insurgency’ 148

7 State Responsibility 150


I. The ILC Draft Articles 150
II. Attribution of Acts to the State 151
A. Organs of the State 151
B. Private Persons 152
C. Ultra vires Acts 153
III. Due Diligence 154
A. The Concept 154
B. Prevention 155
C. Punishment 156
IV. Mob Violence and Riots 157
A. Reasonable Precautions 157
B. Attacks against Foreigners 158
V. Insurgency 158
A. The Incumbent Government 158
(a) Acts of Commission 158
(b) Acts of Omission 159
(c) Failure to Exercise Due Diligence 160
(d) Force majeure 161
B. Successful Insurgents 162
(a) A New Government 162
(i) Attribution of Insurgent Acts 162
(ii) Retroactivity 163
(iii) Limitations 164
(iv) Dual Attribution 164
(v) Power-sharing 165
(vi) Return to Power 166
(b) A New State 166
C. Unsuccessful Insurgents 168

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
x 
VI. Foreign Intervention 168
A. Responsibility of the Foreign State for Acts of Its Organs 168
B. Complicity 169

8 The Principal LONIAC Treaty Provisions 173


I. Common Article 3 173
A. The Text 173
B. Analysis 174
(a) Scope of Application 174
(b) Gaps and Flaws 175
(c) Humane Treatment 176
(d) ‘A Regularly Constituted Court’ 177
(e) Offer of Services by Impartial Humanitarian Bodies 179
(f ) Special Agreements 180
II. AP/II 181
A. Comparisons 181
(a) AP/II and Common Article 3 181
(b) AP/II and AP/I 182
B. Humane Treatment 184
(a) Fundamental Guarantees 184
(b) Collective Punishments 186
(c) Belligerent Reprisals 187
(d) The Protection of Children 188
(e) Internment 189
(f ) Penal Prosecutions 189
C. Wounded, Sick and Shipwrecked 191
(a) Protection and Care 191
(b) Medical and Religious Personnel 193
(c) The Emblem 195
D. The Civilian Population 195
(a) Protection from Attack 195
(b) Starvation of Civilians 197
(c) Works or Installations Containing Dangerous Forces 198
(d) Cultural Property 198
(e) Forced Movement of Civilians 199
(f ) Relief Action 200

9 Additional Treaty Texts 206


I. Treaties Explicitly Apposite to NIACs 206
A. Cultural Property 206
B. Weapons 208
C. Child-Soldiers 210
II. Treaties Implicitly Apposite to NIACs 211
A. Enforced Disappearances 211

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
PREFACE

Due to their preponderance and intensity, non-international armed


conflicts are currently very much in the public mind: often, more so than
international armed conflicts. The present volume serves as a compre-
hensive introduction to the international legal regime of non-
international armed conflicts, proceeding strictly in light of what the
contemporary law is (as distinct from what the present author or any-
body else would like it to be).
Non-international armed conflicts raise a raft of issues that need to be
addressed, including in particular their preconditions, thresholds, diverse
forms and configurations; the discordant perspectives of the international
and domestic legal systems; as well as the application of treaty and
customary law to non-State actors. In addition, it is necessary to examine
the consequences of intervention by foreign States; the role of the
Security Council; the effects of recognition; State responsibility for
wrongdoing to the installations, diplomats or nationals of foreign
States, etc. The interface between the law of international and non-
international armed conflicts is a matter of crucial concern. There are
also numerous specific problems, ranging from the complexities of
‘failing States’ to the recruitment and use of child-soldiers.
The main thrust of the book relates to the law regulating hostilities.
Conduct of hostilities in non-international armed conflicts, once virtually
overlooked by international law, is currently ingrained in the lex lata to
an ever-increasing extent. The process is primarily the outcome of a
substantial body of case law delivered by international courts
and tribunals.
There is an ineluctable intersection between the law of non-
international armed conflicts, human rights law and international
criminal law. To avoid confusion, it is necessary to look carefully for
guidelines indicating which legal norms are applicable in any
given situation.

xv

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:26, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091.001
xvi 
Much attention is devoted in this study to available treaty texts: what
they contain and what they do not; what they mean and what can
perhaps be read into them. Customary international law coincides with
many treaty provisions, but sometimes custom either goes beyond treaty
law or falls short of it.
The second edition takes into account the latest events (until early
2020) in terms of the practice of States, judicial pronouncements and
Security Council resolutions. Recent NIACs and new phenomena (such
as Da’esh and the struggle against it) have been explored. The entire text
has been reviewed and revised to reflect up-to-date developments. The
discussion of several themes (e.g., peace accords terminating hostilities or
the complicity of intervening States) has been substantially amplified.
The present book serves as a companion to three other volumes
published by Cambridge University Press, dealing respectively with the
jus ad bellum,* the jus in bello in international armed conflicts** and the
law of belligerent occupation.*** Largely speaking, between them, the
four volumes cover the general spectrum of the law of armed conflict in
its various aspects. To minimize repetition, matters considered in detail
in the companion volumes are not rehashed here.
There is one important omission: namely, the treatment of internees
(either in international or in non-international armed conflicts). The
reason is that the topic calls for a juxtaposition and analysis of inter-
national legal rules affecting diverse categories of civilian detainees – in
peacetime and in armed conflict; in inter-State as much as in intra-State
strife; and in occupied territories – plus the special status of prisoners of
war. Such a comparative survey has to be done methodically, and it is not
undertaken in the present book (just as it was not attempted in the
companion volumes).
The numerical cross-references in the text of the book (as distinct from
the indices) are to paragraphs and not to pages.
To facilitate syntax, generic pronouns relating to individuals are usu-
ally drawn in masculine form. This must not be viewed as gender-
specific.

* Y. Dinstein, War, Aggression and Self-Defence (6th ed., 2017).


** Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict
(3rd ed., 2016).
*** Y. Dinstein, The International Law of Belligerent Occupation (2nd ed., 2019).

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:26, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091.001
TABLE OF CASES
REFERENCES ARE TO PAGE NUMBERS

Abella case (Argentina) (Inter-American Commission on Human Rights), 42–3


Aguilar-Amory and Royal Bank of Canada Claims (Arbitration), 129
Akayesu, Prosecutor v. (ICTR, Appeals Chamber), 16–17, 82
(ICTR, Trial Chamber), 39, 45, 63, 221, 240, 270
Aleksovski, Prosecutor v. (ICTY, Appeals Chamber), 191
(ICTY, Trial Chamber), 235
Al Mahdi, Prosecutor v. (ICC, Trial Chamber), 239
Al-Waheed et al. v. Ministry of Defence (UK Supreme Court), 286
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, Case Concerning (Bosnia and Herzegovina v. Serbia and Montenegro)
(ICJ), 151, 155, 170, 172
Application of the International Convention on the Elimination of all Forms of Racial
Discrimination, Case Concerning (Georgia v. Russia) (Provisional Measures)
(ICJ), 297
Armed Activities on the Territory of the Congo, Case Concerning (Congo v. Uganda)
(ICJ), 102, 104, 106, 110, 112

Bagosora et al., Prosecutor v. (ICTR, Trial Chamber), 18


Barrios Altos v. Peru (IACHR), 262
Bemba, Prosecutor v. (ICC, Pre-Trial Chamber), 29, 234, 250
(ICC, Trial Chamber), 44, 48
Blagojević, Prosecutor v. (ICTY, Trial Chamber), 199–200
Blaškić, Prosecutor v. (ICTY, Appeals Chamber), 77, 273
Bolívar Railway Company case (Arbitration), 164
Boškoski et al., Prosecutor v. (ICTY, Trial Chamber), 39, 43–5, 60–2, 65
Brđanin, Prosecutor v. (ICTY, Appeals Chamber), 276
Brima et al., Prosecutor v. (SCSL, Trial Chamber), 186, 234, 241–3, 272–3

Compagnie Générale des Asphaltes de France (Arbitration), 147


Continental Shelf, Case Concerning the (Libya/Malta) (ICJ), 11

Delalić et al., Prosecutor v. (ICTY, Trial Chamber), 12, 16, 18, 74, 222, 234
Diakité v. Commissaire Général aux Réfugiés et aux Apatrides (CJEU), 315–16

xvii

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
xviii   
Đorđević, Prosecutor v. (ICTY, Trial Chamber), 78

Esmukhambetov et al. v. Russia (ECHR), 300

Fofana et al., Prosecutor v. (SCSL, Appeals Chamber), 186–7, 196


(SCSL, Trial Chamber), 233
Furundžija, Prosecutor v. (ICTY, Trial Chamber), 221, 229, 240, 262, 272

Galić, Prosecutor v. (ICTY, Appeals Chamber), 76, 273


(ICTY, Trial Chamber), 79, 282–4
German Interests in Polish Upper Silesia, Case Concerning Certain (Merits) (Germany/
Poland) (PCIJ), 8
Gotovina et al., Prosecutor v. (ICTY, Trial Chamber), 50

Hadžihasanović et al., Prosecutor v. (ICTY, Appeals Chamber), 60, 281


(ICTY, Trial Chamber), 291
Halilović, Prosecutor v. (ICTY, Trial Chamber), 66, 277
Hamdan v. Rumsfeld (US Supreme Court), 33
Haradinaj et al., Prosecutor v. (ICTY, Trial Chamber), 38, 44, 49
(ICTY, Trial Chamber, Retrial), 39, 49
Home Frontier and Foreign Missionary Society of the United Brethren in Christ
(United States) v. Great Britain (Arbitration), 168

Iloilo Claims (Arbitration), 159


Immunity from Legal Process of a Special Rapporteur of the Commission on Human
Rights, Difference Relating to, Advisory Opinion on (ICJ), 151
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide,
Perpetration, Cumulative Charging (Special Tribunal for Lebanon), 226
Isayeva et al. v. Russia (ECHR), 300, 302

Jansen v. Mexico (Arbitration), 131


Jokić, Prosecutor v. (ICTY, Trial Chamber), 198–9
Jurisdiction of the Courts of Danzig (Pecuniary Claims of Danzig Railway
Officials Transferred to the Polish Service), Advisory Opinion on the (PCIJ),
86–7

Kallon et al., Prosecutor v. (Decision on Jurisdiction) (SCSL, Appeals Chamber), 51,


86, 92–3, 265
Karadžić, Prosecutor v. (ICTY, Appeals Chamber), 197
Katanga, Prosecutor v. (ICC, Pre-Trial Chamber), 240
(ICC, Trial Chamber), 44, 61
Kayishema et al., Prosecutor v. (ICTR, Trial Chamber), 16, 227
Khatsiyeva et al. v. Russia (ECHR), 270

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
   xix
Koi et al., Public Prosecutor v. (UK Privy Council), 143
Kordić et al., Prosecutor v. (ICTY, Appeals Chamber), 199
Krnojelac, Prosecutor v. (ICTY, Appeals Chamber), 273
(ICTY, Trial Chamber), 272
Kunarac et al., Prosecutor v. (ICTY, Appeals Chamber), 16, 48, 220, 269
(ICTY, Trial Chamber), 220, 222–3, 293–4, 298
Kupreškić et al., Prosecutor v. (ICTY Trial Chamber), 279

LaGrand case (Germany v. US) (ICJ), 87


Legal Consequences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276 (1970),
Advisory Opinion on the (ICJ), 118
Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory, Advisory Opinion on (ICJ), 296–8
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion on the
(ICJ), 279, 281, 298–9, 301–2
Limaj et al., Prosecutor v. (ICTY, Trial Chamber), 61, 64
Lubanga, Prosecutor v. (ICC, Trial Chamber), 45, 71–2, 80, 116, 242, 250, 278

Marguš v. Croatia (ECHR, Grand Chamber), 262


Massacres of El Mozote and Nearby Places, Case of the v. El Salvador
(IACHR), 261–2
McCann et al. v. UK (ECHR), 54, 294
Martić, Prosecutor v. (ICTY, Trial Chamber), 187
Milošević, D., Prosecutor v. (ICTY, Appeals Chamber), 196–7
(ICTY, Trial Chamber), 44, 81, 196
Milošević, S., Prosecutor v. (ICTY, Trial Chamber), 127
Mrkšić et al., Prosecutor v. (ICTY, Trial Chamber), 76
Musema, Prosecutor v. (ICTR, Trial Chamber), 25, 29, 76

Nicaragua, Case Concerning Military and Paramilitary Activities in and against


(Merits) (Nicaragua/USA) (ICJ), 11–12, 66, 71, 96, 98, 102, 109–10, 175, 201,
267
Norman, Prosecutor v. (Decision on Jurisdiction) (SCSL, Appeals Chamber), 84, 272
North Sea Continental Shelf cases (Germany/Denmark; Germany/Netherlands)
(ICJ), 11
Ntaganda, Prosecutor v. (ICC, Appeals Chamber), 177
(ICC, Pre-Trial Chamber), 200, 243
(ICC, Trial Chamber), 199, 242
Noyes case (Arbitration), 157–8
Nuremberg Judgment (IMT), 88

Ongwen, Prosecutor v. (ICC, Pre-Trial Chamber), 241

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
xx   
Petrolane, Inc. v. Iran (Iran–US Claims Tribunal), 154
Pinson (France) v. Mexico (Arbitration), 163
Prlić et al., Prosecutor v. (ICTY, Appeals Chamber), 246–7
Puerto Cabello and Valencia Company case (Arbitration), 165

Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal)


(ICJ), 222

Rankin (US) v. Iran (Iran–US Claims Tribunal), 163


Réclamations Britanniques dans la Zone Espagnole du Maroc (Arbitration), 160
Rutaganda, Prosecutor v. (ICTR, Trial Chamber), 23, 56

Sakhanh case (Sweden, Stockholm District Court), 178–9


Sambiaggio case (Arbitration), 159, 168
Santa Clara Estates Company case (Arbitration), 159
Sarropoulos c. Etat Bulgare (Arbitration), 158
Semanza, Prosecutor v. (ICTR, Trial Chamber), 269–70
Sesay et al., Prosecutor v. (SCSL, Appeals Chamber), 225
(SCSL, Trial Chamber), 177
Short (US) v. Iran (Iran–US Claims Tribunal), 164–5
Strugar, Prosecutor v. (ICTY, Trial Chamber), 239, 276
Tadić, Prosecutor v. (Decision on Jurisdiction) (ICTY, Appeals Chamber), 11–12,
37–8, 41, 44–5, 48–9, 66–7, 119, 181–2, 208, 228, 231, 249, 269, 271, 274–5, 278,
282, 285
(Judgment) (ICTY, Appeals Chamber), 61, 74, 109
(Judgment) (ICTY, Trial Chamber), 43–4, 73–4
Tehran, Case Concerning United States Diplomatic and Consular Staff in (ICJ), 153

V., case of (Germany, Federal Supreme Court), 235


Varnava et al. v. Turkey (ECHR, Grand Chamber), 299
Vasiljević, Prosecutor v. (ICTY, Trial Chamber), 233
Velásquez Rodríguez case (IACHR), 153

West (USA) v. Mexico (Arbitration), 157


Western Sahara, Advisory Opinion on (ICJ), 85

Yeager (US) v. Iran (Iran–US Claims Tribunal), 152, 163


Youmans case (Arbitration), 153

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:26, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
TABLE O F S ECURITY COUNCIL RESOLUTIONS
REFERENCES ARE TO PAGE NUMBERS

Resolution 688 (1991), 119–20


Resolution 733 (1992), 123
Resolution 814 (1993), 123
Resolution 819 (1993), 124
Resolution 827 (1993), 124
Resolution 836 (1993), 124
Resolution 955 (1994), 124
Resolution 1127 (1997), 122
Resolution 1132 (1997), 141
Resolution 1383 (2001), 141
Resolution 1540 (2004), 274
Resolution 1546 (2004), 141
Resolution 1564 (2004), 83–4
Resolution 1970 (2011), 121
Resolution 1973 (2011), 121–2, 135
Resolution 2043 (2012), 124
Resolution 2098 (2013), 122–3
Resolution 2100 (2013), 123
Resolution 2118 (2013), 213, 274
Resolution 2127 (2013), 123
Resolution 2161 (2014), 70
Resolution 2165 (2014), 202–3
Resolution 2170 (2014), 70
Resolution 2199 (2015), 70
Resolution 2216 (2015), 7, 120, 132
Resolution 2235 (2015), 214
Resolution 2249 (2015), 70
Resolution 2259 (2015), 47
Resolution 2366 (2017), 52
Resolution 2388 (2017), 240
Resolution 2423 (2018), 125
Resolution 2462 (2019), 43

xxix

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:26, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
xxx     
Resolution 2499 (2019), 51
Resolution 2504 (2020), 119

Statute of the ICTY, 1993, 228, 230


Statute of the ICTR, 1994, 31, 229–30

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:26, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
TABLE OF GENERAL ASSEMBLY
RESOLUTIONS

Resolution 217 (III)) [Universal Declaration of Human Rights], 305, 311–12


Resolution 2625 (XXV) [Friendly Relations Declaration], 96–7, 111–12
Resolution 3314 (XXIX) [Definition of Aggression], 104, 136
Resolution 36/103 [Intervention], 96–7
Resolution 51/210 [Terrorism], 225
Resolution 60/1 [World Summit], 98

xxxi

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:26, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:26, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:26, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091
1

The Framework

I. Introduction
A. NIACs and IACs
1. Every armed conflict is either international or non-international in
character (see infra 71). Non-international armed conflicts (NIACs) –
often called internal armed conflicts or, in the past, civil wars – are an
older phenomenon than the modern nation-State. The Roman Republic
was subverted and ultimately destroyed by enervating civil strife. The late
Roman Empire was shaken to its foundations by near-constant bruising
fights between rivals who wished to assume the purple. The Islamic
Caliphate went through the turmoil of fitna; and in the long history of
the Chinese Empire regimes and dynasties often succumbed to aggressive
warlords. Throughout medieval and early modern Europe, internal con-
flicts between barons and kings, interspersed by many a jacquerie and
fronde, were commonplace. In a multitude of countries, the animosities
and fervour of such ruptures (exemplified by the War of the Roses in
England) brewed for long periods of time. In more recent times, NIACs
like the American Civil War (1861–5), the Russian Civil War (1917–22)
or the Spanish Civil War (1936–9) left scars of self-inflicted wounds not
healed for generations.
2. In the past several decades, NIACs have led to genocide and
appalling massacres. But even when less calamitous in their effects, they
have caused abundant losses of life and tangible damage to property. The
incessant ordeals of NIACs (meeting the preconditions set out in
Chapter 2) have occurred in scores of countries all over the globe.1
Some of these NIACs were (or are) exceptionally brutal; others were

1
The following list of NIACs occurring in the postcolonial period can be compiled in
alphabetical order: Afghanistan, Algeria, Angola, Azerbaijan, Bahrain, Bolivia, Bosnia/
Herzegovina, Brunei, Burkina Faso, Burundi, Cambodia, Cameroon, Central African
Republic, Chad, Colombia, Comoros, Congo, Congo-Brazzaville, Cyprus, Djibouti,

Downloaded from https://www.cambridge.org/core. , on 01 Mar 2022 at 16:07:25, subject to the Cambridge Core terms of use, available at
https://www.cambridge.org/core/terms. https://doi.org/10.1017/9781108864091.005
Another random document with
no related content on Scribd:
probably have taken the most extreme measures against him. But
three weeks had gone by, his anger had had time to cool, and he
could realize the danger of attempting to seize and deport a marshal
whose army was double the size of his own and Suchet’s combined,
and who had a powerful faction to support him among his own
generals. Joseph hoped that a mandate for Soult’s recall and
disgrace would soon be on its way from Russia, and meanwhile
curbed his temper, ignored the Marshal’s recent charges of
treachery, and contented himself with treating him with coldness, and
overruling many of his proposals, on the mere formal ground of
discipline. He was the commander-in-chief, and could accept or
reject the suggestions of a subordinate as he pleased. Soult was no
longer three hundred miles away, as he had been in June, and
orders given by a superior on the spot could be enforced, unless the
Marshal were prepared to break out into open insubordination.
There was no difference of opinion as to the necessity for
marching on Madrid. But wrangling arose as to the amount of troops
that would be needed for the operation. Soult said that every
possible man would be required, and wished to march with the entire
Army of the South on San Clemente and Ocaña, while he suggested
that the King, with the Army of the Centre and a large detachment
taken from Suchet, should move by Requeña and Cuenca. Suchet
protested in the most vigorous fashion against being stripped of any
of his divisions, and maintained that it was rather necessary that he
should be lent 5,000 men from the Armies of the Centre of the
South. The King and Jourdan refused to consider the latter
proposition, but agreed that Suchet would require all his own troops,
and that none should be taken from him. Yet approving of the double
movement on Madrid, they declared that the Army of the Centre was
too small to operate by itself, and that Soult should make over to it
Barrois’s division and a brigade of light cavalry, to bring it up to the
necessary strength. Soult protested loudly: the Emperor had
entrusted the army of the South to him; he was responsible for it; it
was one and indivisible, and so forth[115].
Joseph then put the matter to him in the form of a simple order to
set these troops on a certain route on a certain day. The Marshal did
not dare to disobey, but stated that he regarded them as still
belonging to his army, and should continue to expect reports from
their commanders. This left him with a force of five infantry and three
cavalry divisions, disencumbered of his sick, and of 2,000 old,
weakly, or time-expired men, who marched to Valencia to join the
next convoy that Suchet should send to France. Their total (omitting
Barrois and the cavalry taken off by Joseph) made up 30,000
infantry, 6,000 horse, and with engineers, artillery, train, &c., just
40,000 men. The Army of the Centre on October 15th showed
(including Palombini, the King’s Guard and the Spaniards) about
15,000 present under arms, to which must be added Barrois and the
two cavalry regiments that accompanied him[116], making 6,000 men
between them. Thus the total force with which Joseph and Soult
marched on Madrid was over 60,000 men[117].
The object of dividing the advancing army into two columns was
not merely to make it more easy for the troops to find food in a
desolate country, but much more to carry out a strategical plan. If the
whole army had moved by the high road through La Mancha, it
would have had no power to communicate with the Army of Portugal.
The King’s idea was that the northern column, which marched by
Cuenca, and which he himself accompanied, would ultimately get
into touch with Souham, who had been directed—by dispatches
which reached him too late or not at all—to follow Wellington in such
a way that he would be able to outflank him on the Upper Douro, and
open up communications by the route of Aranda, the Somosierra
Pass, and Guadalajara, with the main French Army. But Souham,
when he commenced his advance against Wellington on October
18th, had no order from the King later than a letter of October 1st,
written before Soult had arrived in the kingdom of Valencia. He
received no more dispatches while engaged in his pursuit of
Wellington, and was unaware of Joseph’s later plans, so that when
he reached Valladolid he made no endeavour to feel to his left,
towards Aranda, but rather extended himself to his right, in the
direction of Tordesillas and Toro, a movement which took him entirely
away from the direction in which the King hoped to find him. They did
not get into touch, or combine their operations in any way, till
November had arrived. At the same time the advance of a large
body of troops by the route of Cuenca turned out most profitable in
the end to the French strategy, for it was precisely this flanking
column, of great but unknown strength, which compelled Hill to
abandon his intention of defending the lines of the Tagus or the
Tajuna. However he might place himself opposite Soult’s army
coming from the South, he had this threatening force beyond his
eastern flank, turning his positions by roads too remote for him to
guard.
King Joseph had proposed to commence his march upon Madrid
at the earliest possible moment—at the interview with the three
marshals at Fuente la Higuera he had named the 9th October as the
date for starting. But Soult declared, after a few days, that this was
impossible, owing to the necessity for collecting the convoys that
Suchet was sending him, replenishing his ammunition, and bringing
up his rearmost troops. The division of Conroux had picked up the
yellow fever, by plundering out of its route, during the march through
Murcia. It had been left in quarantine, some days behind the rest of
the army, and would take time to come up. It is probable that Soult
was not really wasting time of set purpose; but the King was certainly
under the impression that he was doing so, and their
correspondence was most acrimonious[118]. Special offence was
given by Joseph’s withdrawing Drouet from the Army of the South,
and entrusting him with the command of that of the Centre. But when
Soult murmured at this and other things, the King sent him a laconic
letter of ten lines, telling him that if he refused to obey orders he had
better resign his command and go to Paris, where he would have to
give account for all his doings. The Marshal, as on previous
occasions when the question of his resignation had been pressed
home[119], avoided this simple solution of the problem, and yielded a
grudging obedience in the end.
Soult’s army was at this time cantoned with its right wing about
Almanza, Yecla, and Fuente la Higuera, and its left wing—now about
to become its advanced guard—in and around the large town of
Albacete. A detachment from this wing had been for the last ten days
attacking the isolated rock-fortress of Chinchilla, the only inland
stronghold which was held by the Spaniards in the kingdom of
Murcia. It was a Gothic donjon on an inaccessible cliff, only
formidable because of its position, and manned by a trifling garrison.
It might have held out indefinitely, having a resolute governor, a
certain Colonel Cearra. But on October 9th, in a frightful
thunderstorm, lightning struck the donjon, killed 15 soldiers,
wounded many more, set the place on fire, and disabled the
governor[120]. The garrison capitulated in sheer dismay, and the use
by the French of the high road between Albacete and Almanza was
no longer incommoded by the existence of this petty fortress.
King Joseph with the Army of the Centre marched out from
Valencia on October 17th, and had his head-quarters at Requeña on
the road to Cuenca on the 19th. On the 23rd he reached that ancient
and much dilapidated city, and found it already in the hands of
Drouet, who had arrived there on the 20th with Barrois’s division and
the cavalry brigade of Avy from the Army of the South: he had
expelled from it Bassecourt’s 3,000 Murcian troops. Soult had
started on the 15th from Albacete, and had sent off Drouet’s
detachment from San Clemente to Cuenca, while he himself
marched by Belmonte on Tarancon and Santa Cruz de la Zarza,
which he reached on October 25th. He had not got into real touch
with the enemy till, on the last-named day, the cavalry on the right of
his advance came into contact with Freire’s Murcian horse in front of
Tarancon, and those on his left ran into the vedettes of Long’s British
dragoons in front of Ocaña. During the time of his advance these
troops had been retiring in front of him, from Consuegra, Toboso,
Almonacid, Belmonte, and other places in La Mancha, where they
had been providing a long screen of posts to observe his
movements. They had, by Hill’s orders, retired from the 18th onward
before the French cavalry, without allowing themselves to be caught
up. It was only immediately in front of the Tagus that they slackened
down their pace, and allowed the French to discover them. There
was a smart skirmish in front of Ocaña on October 25th, between
Bonnemain’s brigade and the 9th and 13th Light Dragoons and 10th
Portuguese cavalry. The allied squadrons were pushed back towards
Aranjuez with the loss of some 30 men, Erskine, who was in
command of the cavalry division, refusing to make a stand or to bring
up his reserves. His management of the troops was (not for the first
time) much criticized by eye-witnesses[121], but it must be
remembered that Hill had directed him not to commit himself to a
serious action. On the same day Freire’s horse were turned out of
Tarancon by Perreymond’s chasseurs.
The position of the commander of Wellington’s detached corps in
front of Madrid had become a very responsible one between the
15th, when Soult’s advance began, and the 24th, when the enemy
came up to the line of the Tagus and developed his attack.
Fortunately Hill was in close touch with his chief: so well was the line
of communication between them kept up, that it only took two days
for a letter from Burgos to reach Madrid—and vice versa. When the
army had come back from the Arlanzon to the Douro, the time
became even shorter. Wellington received at Cabezon on the
evening of October 27th dispatches that Hill had written on the
morning of the 26th[122]. This contrasts wonderfully with the slow
travelling of French correspondence—Souham got at Briviesca on
October 17 a letter written by King Joseph at Valencia on October
1st. It had been obliged to travel by the absurdly circuitous route of
Tortosa, Saragossa and Tudela. Truly the guerrilleros made
concerted movements of French armies singularly difficult.
On the 17th October Hill had already got off his first letter of
alarm to Wellington, saying that Soult was certainly on the move; by
the 19th he knew that there was a column moving upon Cuenca, as
well as the larger force which was advancing by San Clemente and
Belmonte. He asked for orders, but meanwhile had to issue his own,
in consonance with earlier directions received from Wellington.
These presupposed two conditions which had not been realized—
that the fords of the Tagus would be impassable, and that
Ballasteros’s Andalusian army would already have crossed the
Sierra Morena to Alcaraz and be lying on Soult’s flank. But their
general directions were still practicable: the line of the Tagus was to
be defended unless the enemy were in overwhelming strength: if
(contrary to Wellington’s expectation) the whole French force in
Valencia should advance, and its numbers prove greater than Hill
could hope to check, he had been directed to evacuate Madrid, and
to fall back beyond the Guadarrama, in order to join his chief on the
Adaja, south of Valladolid, in Old Castile[123]. The first thing necessary
was to discover the strength of the enemy—all accounts sent in by
the Spaniards agreed that it was very great, and in particular, that
the column going by Cuenca was no mere detachment, but a solid
and considerable force. Meanwhile Wellington, even as late as
October 12[124], had been informing Hill that his design of marching
down on Madrid with three divisions, when the siege of Burgos
should be either successfully concluded or else abandoned, was still
retained. Any morning a dispatch might come to say that the
commander-in-chief, with 15,000 men, was on his way to Valladolid;
and therefore the army in front of Madrid must be ready for him,
concentrated and in marching order. For if he came in person with
such a reinforcement, Soult and King Joseph could be fought and
beaten, whenever they made their appearance.
On October 15th, when the French advance had actually begun,
the allied troops in New Castile were disposed with an outer screen,
mainly consisting of Spanish troops, and a central nucleus of Hill’s
own Anglo-Portuguese placed in cantonments between Madrid and
the Tagus. Bassecourt was at Cuenca with 3,000 men; Elio, with
Freire’s Murcian horse and a weak division of infantry—5,000 men in
all—was watching the high roads from Albacete and Requeña to
Madrid, in front of Tarancon. Penne Villemur’s cavalry with Morillo’s
infantry—3,500 men at the most—lay across the great chaussée
from Andalusia, about Herencia and Madridejos[125]. These troops
formed the outer screen—not taking account of the Empecinado,
who was (as usual) on the borders of New Castile and Aragon,
worrying Suchet’s garrisons in the latter kingdom. Behind Penne
Villemur, and south of the Tagus, were Long’s British and H.
Campbell’s Portuguese cavalry brigades, in La Mancha, at Toboso,
Villacanas, and other places. All the rest of the British troops were
north of the Tagus, in the triangle Madrid-Toledo-Fuentedueñas, as
were also D’Urban’s Portuguese horse and Carlos de España’s
Spanish infantry division. When the advance of Soult and King
Joseph developed itself, Hill drew everything back behind the Tagus,
save Bassecourt’s division at Cuenca, which being evicted from that
place by Drouet on the 20th did not retire towards Madrid, but went
up into the mountains, and ultimately by circuitous routes rejoined
the Alicante army.
On the 25th October, when Soult’s advanced cavalry had driven
Long and Freire from Ocaña and Tarancon, Hill had his whole force,
British, Portuguese and Spanish, arrayed in what he intended to be
his preliminary fighting position along the Tagus. The extreme right
was formed by Skerrett’s 4,000 men from Cadiz, who had got up to
the front just in time to take their share in the fighting. They lay at
Toledo and Añover. Then came the four brigades of the British 2nd
Division, two of them at Aranjuez—which was held as a sort of tête
de pont south of the river—and two at Colmenar de Orija. The line
beyond them was prolonged by Penne Villemur and Morillo about
Belmonte de Tajo and the fords of Villamanrique. Elio and Freire,
who had retired across the bridge of Fuentedueñas after being
driven out of Tarancon, was in charge of the upper Tagus from that
point to Sacedon. Behind this front line lay the reserves—the 3rd and
4th Divisions close together at Valdemoro and Cienpozuelos, behind
Aranjuez; the Light Division at Arganda; Carlos de España at
Camporeal; Hamilton’s Portuguese division at Chinchon. Of the
cavalry, Long and Campbell’s Portuguese, after being turned out of
Ocaña, had fallen back on Aranjuez: D’Urban’s Portuguese were at
Arganda, Slade’s brigade at Morata, Victor Alten’s at Getafe[126]. One
march would concentrate the whole of the Allies, horse and foot—
save Elio and Skerrett’s detachment alone—to defend the passage
of the Tagus at either Aranjuez or Fuentedueñas, the two crossing-
places which Hill judged that Soult would take into consideration,
when he attempted to force the line of the river. About 36,000 men
would be available, of whom 28,000 were Anglo-Portuguese and
8,000 Spaniards.
Soult, however, kept perfectly quiescent in front of Aranjuez and
Fuentedueñas on the 26th-27th. He had still his cavalry to the front,
but his infantry divisions were only coming up in succession:
Conroux’s in especial, being still in quarantine owing to the yellow
fever, was very far behind. But it was not merely the late arrival of his
rear that kept Soult motionless: he was waiting for the Cuenca
column to bring pressure to bear upon Hill’s flank, and did not intend
to commit himself to any important engagements until the whole
French army was in line. He expressed to King Joseph his opinion
that the Allies were drawn out upon too long a front, and that a bold
thrust at Aranjuez would probably succeed, when the attention of Hill
should be drawn away to the East by the appearance of the Cuenca
column in the direction of Fuentedueñas. Meanwhile he proceeded
to make his preparations for attacking Aranjuez on the 28th.
Such an attack was never delivered, because Hill, on the evening
of the 27th, made up his mind that he must not fight upon the
Tagus[127]. For this determination there were three causes. The first
was that the river still remained so low, the autumn rains having
been very scanty hitherto, that it was fordable in many places. The
mere breaking of the bridges at Aranjuez and Fuente Dueñas did not
make it impassable, as Wellington and Hill himself had expected
would be the case by the end of October. Secondly, if the line of the
Tagus were forced at any point, the troops strung out along it had a
very dangerous retreat before them, owing to the fact that the
Tajuna, a stream not much smaller than the Tagus itself in this part of
its course, runs behind it and parallel to it at a distance of only eight
or ten miles. The number of spots where the Tajuna could be
crossed, by fords, bridges, or ferries, were very few, and it was to be
feared that bodies of troops abandoning positions on the Tagus, and
retreating to the next line, might find themselves pressed against the
Tajuna at impassable sections of its course, and so might be
destroyed or captured if the enemy pursued with vigour. Thirdly—as
Soult expected—the movement of the King and the column from
Cuenca had now begun to exercise pressure on Hill’s mind. He had
already moved two British brigades of the 2nd Division to Fuente
Dueñas, replacing them at Aranjuez by Skerrett’s force, which left
Toledo. But what if the King should cross the Tagus not at Fuente
Dueñas but above it, where the river was only observed by Elio’s
Murcians? They certainly could not stop him, and the whole Tagus
line would be turned.
Hill’s resolve was now to defend not the Tagus but the line,
running North and South, of the Henares and the Jarama (the river
formed by the union of the Tajuna and Manzanares), from
Guadalajara to the point near the Puente Larga where the Jarama
falls into the Tagus. On the 28th Skerrett evacuated Aranjuez, and all
the other troops fell back in similar fashion. This position left the
allied army still covering Madrid, and with a safe retreat to the
passes above it, should things go ill. The new disposition of forces
was as follows: Toledo had been handed over to the partida of El
Medico, since no French reconnaissances had come in this
direction, and it was clear that the enemy had no serious intentions
on this flank. The extreme right wing of the army was formed by the
4th Division, now once more under General Cole, who had come up,
cured of his wound, from the Salamanca hospital. It lay at Añover,
behind the point where the Jarama flows into the Tagus, with its flank
covered by the Gunten river and some of Long’s dragoons. Next in
line, six miles to the North, was Skerrett’s force, holding the Puente
Larga, the main passage over the Jarama river, two miles north of
Aranjuez. Beyond him were the 3rd Division and Hamilton’s
Portuguese about Valdemoro and St. Martin de la Vega. Then came
the Light Division at Alcalá de Henares[128]: Carlos de España’s and
Morillo’s Spaniards were in their company. Elio’s Murcians were
directed to fall back on Guadalajara. So much for the infantry: the
cavalry was kept out in front, with orders to keep a line of vedettes
on the Tagus till they should be driven in, and then to hold the course
of the Tajuna in a similar fashion, before breaking its bridges and
falling back on to the Henares and Jarama, the real fighting line. But
nothing was to be risked, and the main body of each brigade was to
keep itself in front of a practicable crossing, by which it could retreat
when the enemy should have shown himself in force. ‘Sir Rowland,’
wrote his Quartermaster-General, ‘wishes you to keep the posts on
the Tajuna, and those in front of it (on the Tagus), as long as you can
with safety. Cover the line of the Henares as long as you can.’[129]
Slade’s, Long’s, and Campbell’s Portuguese squadrons had the
right, covering the river bank from Aranjuez to Villamanrique with
their vedettes, D’Urban, Victor Alten, and Penne Villemur held the
left, from Villamanrique up stream.
On Oct. 28th the French cavalry, having detected the
disappearance of Hill’s infantry, crossed the Tagus both at Aranjuez
and Fuente Dueñas in force, whereupon the allied horse retired
behind the Tajuna and broke all of its bridges. Soult at once
commenced to repair the bridges of Aranjuez, and brought an
infantry division forward into the town on the 29th, but made no
serious effort to feel Hill’s position behind the Jarama and Tajuna,
being determined not to involve himself in heavy fighting till King
Joseph and the column from Cuenca were up in line. The head of
the Army of the Centre, however, reached Fuente Dueñas this same
day, and began to pass[130], meeting (of course) with no opposition.
But the reconstruction of the bridge took some time, and D’Erlon’s
infantry was not across the Tagus in any force till the next day. The
King himself rode to Ocaña, conferred there with Soult, and made
arrangements for a general forward movement upon the 30th. There
would have been heavy fighting upon the 30th-31st, if Hill had been
permitted to make a stand on his chosen position with the 40,000
men whom he had placed in line between Alcalá and Añover. He had
now all his troops concentrated except Elio’s Murcians, who lay out
in the direction of Guadalajara with no enemy in front of them. But on
the morning of the 29th Hill received a dispatch from Wellington,
dated from Cabezon on the night of the 27th, which upset all the
arrangements made hitherto. The important paragraph of it ran as
follows: ‘The enemy are infinitely superior to us in cavalry, and from
what I saw to-day very superior in infantry also. We must retire, and
the Douro is no barrier for us. If we go, and cannot hold our ground
beyond the Douro, your situation will become delicate. We certainly
cannot stand against the numbers opposed to us in any situation,
and it appears to me to be necessary that you, as well as we, should
retire. The only doubt which I entertain is about the road which you
should take, and that doubt originates in the insufficiency of this
army to stop the army opposed to it for a sufficient time to allow you
to reach the Adaja. I propose to remain on the Pisuerga to-morrow
(October 28) and as long as I can upon the Douro, and then to retire
by Arevalo. God knows whether I shall be able to remain on either
river!; and if I cannot, your retreat should be by the valley of the
Tagus. If I can remain, we should join as arranged by previous
letters. If I can remain on the Pisuerga to-morrow, I shall pass the
Douro on the 29th, and shall probably be able to prevent the enemy
from crossing in force till the 1st November, in which case I shall
reach Arevalo on the 3rd. You will not receive this letter till the 29th.
You will arrive at the Escurial, probably on the 31st, at Villacastin on
the 2nd, at Arevalo on the 4th.... If I should not be able to hold my
ground either on the Pisuerga or the Douro, I shall apprise you of it
at the first moment, and shall suggest your line of retreat.... Your
march, as proposed (i.e. via the Guadarrama) at least as far as
Villacastin, would be secure, whereas that by Talavera, &c., would
not, till you shall cross the Tagus. Do not order the bridge at Almaraz
to be taken up or destroyed, till you are certain you do not want
it.’[131] The dispatch ended by directing Hill to bring on with him
Carlos de España’s, Morillo’s, and Penne Villemur’s Spaniards, but
to order Freire, Elio, and Bassecourt to join Ballasteros by the route
of Toledo, while the Empecinado had better go to his old haunts in
the mountains beyond Guadalajara.
This was a most alarming dispatch for Hill. Just as he had
assumed his fighting position, and was expecting to be attacked by
Soult on the following day, he received orders to retire without a
moment’s delay. And what was worst of all, he was told that the line
of retreat indicated to him would not improbably prove dangerous or
impossible, and that he might, within the next day or so, get a
counter-order, directing him to retire by the line of the Tagus and
Almaraz, since a junction with Wellington behind the Adaja might
prove impossible. But a retreat across the front of the enemy, on the
route Navalcarnero-Talavera-Almaraz, would clearly be most
dangerous, since the left wing of the Army (the Light Division,
D’Urban, Alten and the Spaniards) would have forty miles to march
before they were clear of the advancing columns of the French,
debouching from Aranjuez. And to make matters worse, the enemy
was terribly strong in cavalry, and the countryside south of Madrid
was very favourable to the mounted arm. If the army should march at
once for the road by the Guadarrama, and when it had reached the
neighbourhood of Madrid or the Escurial should get the news that
the route to Villacastin and Arevalo had been blocked, it would be
almost impossible to turn off on to the Tagus line or to make for
Almaraz. The only chance left would be to take the bad mountain-
road to Avila, and thence to the upper Tormes, a choice that no
officer could contemplate without dismay in October.
There was one plea that might have been urged in favour of an
instant move toward Talavera and the Tagus route (the right wing to
march by Illescas and Fuensalida, the left by Madrid and
Navalcarnero), but it was a plea of which neither Wellington nor Hill
seems to have thought. Supposing that Hill’s 40,000 men after
uncovering and evacuating Madrid should place themselves behind
the Alberche, in and about Talavera, it was difficult to believe that
Soult and King Joseph would dare to march north to join Souham
and to trouble Wellington. They could hardly leave 40,000 men
behind them uncontained, and would probably have to halt and to
face toward Hill, so as to cover the capital. This threat to their flank
and their rear might force the enemy to come to a stop, and might
secure Wellington’s rear as effectually as a junction with him at
Arevalo behind the Adaja. But on the other hand there were two
considerations which tended to make any use of the Tagus route
undesirable, save on compulsion and as a pis aller. The first was
that the whole valley from Toledo to Almaraz was in a state of
dreadful exhaustion, with half its land untilled and its population living
on the edge of starvation. To subsist there would be difficult. The
second and more important was that the enemy might conceivably
leave Soult and the Army of the South to hold Madrid and contain
Hill’s force, and then would still possess 20,000 men—of the Cuenca
column—who might be sent by the Guadarrama and Villacastin to
take Wellington in the rear. It would be of little use to bring the
enemy to a standstill in the direction of Madrid, if he could still spare
a detachment which would make Wellington’s position in Old Castile
hopelessly untenable, and might even put him in grave danger of
being overwhelmed.
But ‘sufficient for the day is the evil thereof’ was no doubt the
reflection of Rowland Hill, a pious man well acquainted with his
Bible. He had for the present a clear order to march for the Escurial,
the Guadarrama, and Arevalo. That it might be cancelled if certain
circumstances, over which he had no control, should occur on the
Douro, was an unpleasant possibility, which did not come into
consideration on the 29th of October. Accordingly he gave orders for
instant retreat. There was little immediate danger to his left wing,
since the French column in front of it, at Fuente Dueñas, had to pass
first the defiles of the Tajuna and then those of the Jarama, and all
the bridges on both were destroyed or ready for destruction. The
right wing was in a much more delicate situation, since it was
separated from Soult at Aranjuez only by the Jarama. The outposts
of the two armies were in close touch with each other at the Puente
Larga, with nothing but the river between; and the 4th Division at
Añover had to pass behind the force holding the Puente Larga in
order to get into the Madrid road. Supposing that bridge were forced
too soon, Cole would be driven off in an eccentric line of retreat
toward Toledo and Talavera.
While, therefore, all the rest of the army was set in motion for the
Escurial at dawn on the 30th, Skerrett was ordered to stand still at
the Puente Larga, and to hold it at all costs till the rest of the allied
right wing should have got clear. Meanwhile the troops about Alcalá
(the Light Division, España and Morillo) marched round the north
side of Madrid without entering the city, and continuing their course
all day and part of the night, were on the upper Manzanares, about
the palace of El Pardo by 12 p.m. At the same time the troops about
Valdemoro (3rd Division, Hamilton’s Portuguese, and the bulk of the
cavalry) retired past the south side of Madrid, and reached Aravaca,
on its west side two miles out, by night. Here Hill established his
head-quarters. The 4th Division, from Añover, which had the longest
march of all, had been started off before the bulk of the army, on the
night of the 29th, not at dawn on the 30th like the rest. It fell into the
main road at Valdemoro before daybreak, much fatigued; while
halting there the weary men discovered more wine than was good
for them—the population had fled and left their cellars exposed for
the first comer. There was a terrible amount of drunkenness, and so
much straggling, when the division marched off at noon, that many
hundreds of men, hidden in houses in a state of absolute incapacity
to move, were left behind[132]. The division, minus its drunkards,
joined the rest of the right wing at Aravaca that night. Cole remained
behind himself—while his troops marched on—to supervise the
defence of the Puente Larga. He had been told to take on Skerrett’s
brigade as a part of his division till further orders, and naturally
stopped with the rearguard.
By the night of the 30th all the army was concentrated beyond
Madrid, without having seen an enemy or suffered any molestation,
save Skerrett’s detachment, which was fighting all day at the Puente
Larga for the protection of the rest. Soult, as Hill had expected, had
resolved to force the line of the Jarama and Tajuna that day. But
while on the right his cavalry felt forward only to the Tajuna and its
broken bridges, on the left he was already in touch with his enemy,
for the Puente Larga is only two miles outside Aranjuez, from which
the approach to it lies along one of the great avenues of planes that
form part of the royal Park between the Tagus and Jarama.
The Puente Larga is an immensely long bridge of 16 arches, for
the Jarama in winter is a very broad river. Its southern end is
commanded by a slight rising ground, its northern lies in the flat and
ends in a causeway, by which the road finally mounts up on to the
plateau of Valdemoro. Thus it would have been easier to defend
from the south than from the north, as Skerrett had to do. An attempt
had been made to blow up one of the centre arches of the bridge,
but though two mines had been laid, their explosion on the morning
of the 30th did not make a complete breach, one parapet and a
broad section of the footway beside it remaining intact. The engineer
officer in charge, holding that there was no time to make another
mine, had a breastwork covered by an abattis thrown up across the
northern end of the bridge. Here then was a sort of terrace with
balustrades and stone seats, where the bridge and causeway met.
Behind the breastwork and the terrace Skerrett placed his two
companies of the 95th Rifles and part of the 2/47th, while behind the
nearer part of the causeway there was room for the supports, the
rest of the 47th and the 2/87th in close column. The ridge of the
causeway almost completely sheltered them from fire from the
French side of the river, even from the most elevated ground. Three
guns of Braun’s Portuguese battery were prepared for action on the
right end of the terrace, behind the hastily extemporized breastwork.
Half a mile to the rear, at the north end of the causeway, was
Skerrett’s reserve, composed of the 3rd batt. of the First Guards, the
20th Portuguese, and the remaining three pieces of Braun’s battery.
The whole defending force of five battalions and six guns was
somewhat under 4,000 strong.
Soult was not certain whether Hill was intending to fight on the
line of the Jarama, or whether he had merely to drive in a rearguard.
The day was very misty from dawn onward, and at 9 o’clock in the
morning rain began, and fell continuously till night. Thus the Marshal
could not see in the least what sort of a force was opposed to him,
and his cavalry, exploring up and down the river bank, were unable
to find any practicable fords, or to give him any information as to
whether there were allied troops holding the entire course of the
Jarama. After some hours, therefore, Soult sent forward Reymond’s
division[133] with orders to force the Puente Larga, as he had been
informed that it was still passable owing to the failure of the mines. A
battery took post on the rising ground at the south end of the bridge,
and shelled the breastwork and the Portuguese guns, while the
voltigeur companies of the 12th Léger strung, themselves out along
the river bank, and commenced a long bickering fusillade with
Skerrett’s men across the water. The artillery and musketry fight
went on for some hours, till Braun’s three pieces ceased firing for
want of ammunition. Thinking this a favourable moment, Soult sent
part of the 12th Léger against the bridge—the head of the column
never reached the narrow pass at the half-broken eighth arch,
suffering so much from the musketry that it fell back in disorder
before getting half-way across. Another regiment, or the same re-
formed, attempted a similar rush a few minutes later, and was
repulsed in the same fashion. Thereupon Soult ordered the attack to
cease, ‘seeing,’ as he says in his dispatch, ‘that we were wasting
ammunition to no effect.’ He drew off both his guns and his
voltigeurs, and the combat came to an end. A French officer
appeared on to the bridge with a white flag a little later, and got
permission to remove the many wounded lying at its south end. After
dark Skerrett withdrew very quietly, leaving dummy sentries on the
bridge head and the causeway, who were only detected as straw-
stuffed great-coats at dawn next morning. The brigade, therefore,
had an undisturbed march all night, and halted next morning on the
Prado of Madrid, where it was allowed a few hours of rest. Its loss
had been about 3 officers and 60 men killed and wounded, of whom
40 were in the 2/47th and 11 in the rifle companies. The French had
five officers and about 100 men killed and wounded[134]. The whole
fight was much what the combat of the Coa would have been in
1810, if Craufurd had fought behind and not before the bridge of
Almeida.
Soult had deduced, from the stubborn way in which the Puente
Larga was defended, that Hill was standing to fight a general action
behind the Jarama. He made during the night preparations for
bringing up much artillery and constructing bridges, but discovered at
dawn that his exertions had been unnecessary. Cavalry under Pierre
Soult were pushed out as far as Valdemoro, and captured there
some 300 drunken stragglers belonging to the 4th Division, who had
not thought fit to follow Skerrett when he passed through. The day
was one of dense fog, and the younger Soult never got in touch with
Hill’s rearguard, but picked up a rumour that Wellington was
expected at Madrid that day, with two divisions from Burgos, and that
the whole allied army was prepared to deliver battle in a position
outside the capital. In consequence, his brother the Marshal held
back, and contented himself with bringing up the entire Army of the
South to the Jarama, while he sent his false news to King Joseph
and Jourdan. He proposed that the Cuenca column should make no
attempt to force the higher course of the Tajuna, where all the
bridges were broken, and behind which lay the equally tiresome
obstacle of the Henares, but should come round to Aranjuez and
cross by the Puente Larga. Jourdan advised compliance, remarking
that the forcing of the lines of the Tajuna and Henares and the
making of bridges upon them might take many days. To save time
the right wing came round to join the left[135].
This was a godsend to Hill, as it resulted in no pursuit being
made on the 31st; the French advanced cavalry only entered Madrid
on the 1st November, and the second of that month had arrived
before any infantry reached the capital. By that day the allied army
was over the Guadarrama, and well on its way to Villacastin and
Arevalo. The evacuation of Madrid was accompanied with many
distressing incidents: the people were in despair at seeing
themselves about to fall back once more into the power of the
‘Intrusive King’. Many of the notables had committed themselves so
openly to the patriotic cause that they thought it wise to depart in
company with Hill’s army. An order to burn the considerable stores of
provisions which could not be brought off led to a riot—the lower
classes were on the edge of starvation, and the sight of good food
being wasted led them to make a disorderly rush on the magazines,
to drive away the commissaries, and to carry off the flour and salt
meat which was being destroyed. Probably it would have been wise
to permit them to do so without making difficulties; as the stores,
once dispersed, could hardly have been gathered in again by the
enemy. The explosion of the Arsenal in the Retiro fort was a more
absolute necessity, but the Madrileños murmured greatly that the
large building of La China, the porcelain manufactory, was blown up
along with the surrounding earthworks. The mines, it may be
incidentally remarked, were so carelessly laid that two commissariat
officers were killed by the first of them that went off, and the last
nearly made an end of Captain Cleeves, K.G.L., the artillery officer in
charge of the business. He was severely scorched, and barely
escaped with his life[136].
The rearguard of the British Army quitted the mourning city by
noon on the 31st October: the head of the column was already on
that day at the Escurial. On November 1st the passage of the
Guadarrama began, and on the 3rd the last cavalry brigade, bringing
up the rear, was over the mountains. Not a sign had been seen of
the enemy, whose advanced light cavalry only reached Galapagar,
five miles south of the Escurial upon the 2nd. The weather, however,
was very bad, rain falling day after day, and this must serve as an
inadequate excuse for the fact that straggling had already begun,
and that a certain number of men dropped so far behind that they fell
into the hands of the tardily-appearing enemy. But the loss of these
laggards, for the most part the selected bad characters of each
battalion, was a small price to pay for an unmolested retreat. Hill’s
spirits rose, hour by hour, as he received no letter from Wellington to
say that the retreat to Arevalo had become impossible, or that the
line of the Douro had been lost. These terrible possibilities might—so
far as he knew—have come into existence at any moment on the
1st, 2nd, or 3rd of November. On the 4th the whole army from
Madrid was concentrated at Villacastin, so close to Wellington’s
position behind the Douro at Rueda that dispatches could now get
through from him to Hill in less than twelve hours. The cavalry of the
extreme rearguard—the 2nd Hussars K.G.L., who had left the
Escurial only on the 3rd, had barely seen the enemy’s advanced
vedettes on that day, and were not overtaken by them till late on the
4th. The pursuit was slow, cautious, and not executed by any very
large body of horse. Hill, therefore, granted his troops a very
necessary rest of twelve hours at Villacastin.
At last, however, on the evening of November 4th, when the
worst possibilities seemed to have passed by, and nothing could any
longer prevent Hill from joining Wellington, discouraging news, so
long expected, at last came to hand. A dispatch from Rueda
informed Hill that his chief had determined to retreat from the line of
the Douro, for reasons which will be explained in the next chapter,
and that the position in which he intended to fight was that in front of
Salamanca, where he had faced and beaten Marmont in July. This
being so, there was no reason to bring up Hill’s corps to Arevalo.
Since a junction between the two halves of the army was now
secure, the troops from Madrid should save themselves an
unnecessary détour to the north, by turning off the chaussée to
Valladolid and taking the cross-road by Belayos, Villanueva de
Gomez, and Peñaranda. This would bring them to Alba de Tormes,
where they would find themselves in touch with Wellington’s own
troops, which would move, by La Nava and Cantalpino, to the San
Cristobal position outside Salamanca.
This march therefore Hill executed. On the 4th he had at last
heard of the appearance of Soult’s cavalry, and that same evening
his extreme rearguard, the 2nd Hussars of the K.G.L. had a slight
engagement with French squadrons near Villacastin. But nothing
was known of the main body of the enemy’s infantry, nor was it even
certain whether the Army of the South and the Army of the Centre
were both pursuing by the route of the Guadarrama. Soult, as a
matter of fact, had only made up his mind to cross the mountains by
that route on the 3rd, and nothing but the light cavalry of his brother
was near Hill’s rear. On the 4th, 5th, and 6th November his main
body was coming up, and he was in force at Arevalo on the last-
named day. Only the horse of his advanced guard had followed Hill
on the Peñaranda road. The object of the move on Arevalo was to
seek for the Army of Portugal, of which no certain news had yet been
obtained. The Duke of Dalmatia supposed however that it had to be
looked for on the side of Tordesillas, and wished to communicate
with it before he pressed Hill too closely. For if the latter had united
with Wellington—as was very possible—he might have found himself
in face of more than 60,000 men, and he had but 40,000 of his own,
since the Army of the Centre was not yet up in line. The King himself
with his Guards followed Soult after a short interval, but the three
infantry divisions (Barrois, Palombini, Darmagnac) which had formed
the column that marched from Cuenca, were far behind. Palombini’s
division, which had been told off to act as the rearguard, was
observing the accumulation of Spanish troops near Guadalajara,
where Elio and Freire had now been joined by the Empecinado, who
had come in from the direction of Aragon. They had united at the
Puente de Aunion and Sacedon, a few miles south-east of
Guadalajara, on the upper Tagus. There were now 8,000 or 9,000
enemies in this quarter, still quite close to Madrid, and Joseph and
Jourdan had to come to a difficult decision. If a garrison were left in
Madrid, and a strong column sent to evict Elio from his position, the
Army of the Centre would have few troops left who could follow Soult
in the pursuit of Wellington. But if the whole Army of the Centre
marched by the Guadarrama, there was nothing to prevent Elio from
coming down to reoccupy Madrid, and the political effect of the
evacuation of the capital would be detestable, for it would look as if
the whole French army was but a flying column incapable of holding
what it had won[137]. After some hesitation the King and Jourdan
resolved that the military necessity of taking forward every available
man to crush Wellington was all-important. If Soult alone joined the
Army of Portugal in Old Castile the French in this direction would not
outnumber the combined forces of Wellington and Hill, and might be
brought to a stand—perhaps even beaten. The 20,000 men of the
Cuenca column must be brought forward at all costs to secure a
numerical superiority for the French arms in the North. Madrid
therefore must be abandoned, and the infantry of the King’s army
marched out of it on the 6th and 8th November, Palombini bringing
up the rear once more. Even the sick and Joseph’s Spanish courtiers
had to be taken on, with a comfortless assurance that they might in
the end be dropped at Valladolid[138]. On the 8th the leading division
of the Army of the Centre reached Villacastin by forced marches, the
rear did not get up till the 10th[139]. Thus it is clear that on November
5th, when Hill executed his flank movement on Fontiveros and
Peñaranda, there was nothing near him save Soult’s advanced
cavalry, supported at an interval by the infantry of the Army of the
South, while the Army of the Centre had not even left Madrid. If
Wellington had but known this, it might have brought about a change
in his orders; but—as cannot too often be repeated—the ‘fog of war’
sometimes lies very thick around a general at the moment when he
has to make his crucial decision, and on these two days the enemy
might have been closed up, instead of being strung out in
detachments over a hundred miles of mountain roads. A few days
after the French left Madrid the Empecinado came down to the
capital and occupied it—Elio had gone off, according to Wellington’s
original orders, to place himself in communication with the Army of
Andalusia (now no longer under Ballasteros) and took post in La
Mancha. Bassecourt reoccupied Cuenca. There was not a French
soldier left in New Castile, and all communication between Soult and
King Joseph on one side and Suchet in Valencia on the other, were
completely broken off.

You might also like