State practice (coupled with opinio juris) is also key to interpreting obligations imposed by customary international law.Footnote No clear rule exists as to what constitutes surrender. 78, International human rights law may muddy the waters here. At the level of small units, for example, once an objective has been seized, an attacking force is trained to fire on the retreating enemy to discourage or prevent a counterattack.Footnote 100 Incidentally, under international humanitarian law (including the law of international and non-international armed conflict (see Additional Protocol I (n 6) art 37(1) and ICRC Study (n 6) r 65) and international criminal law (during both international and non-international armed conflict see respectively ICC Statute (n 51) art 8(2)(b)(xi) and 8(2)(e)(ix)) it is unlawful to invite the confidence of adversaries with the purpose of injuring or capturing them. 106 Afflerbach, Holger, Going Down with Flying Colours: Naval Surrender from Elizabethan to Our Own Times in Afflerbach, Holger and Strachan, Hew (eds), How Fighting Ends: A History of Surrender (Oxford University Press Pictet, Jean, Development and Principles of International Humanitarian Law (Martinus Nijhoff It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through"special agreements.". The issue is that ground forces in such circumstances need to surrender in ways that are clear and unequivocal.Footnote Division 270Slavery, sexual servitude and deceptive recruiting 262. First, the article situates surrender within its broader historical and theoretical setting, tracing its legal development as a rule of conventional and customary international humanitarian law and arguing that its crystallisation as a law of war derives from the lack of military necessity to directly target persons who have placed themselves outside the theatre of armed conflict, and that such conduct is unacceptable from a humanitarian perspective. The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Convention concluded at Geneva on July 27, 1929, relative to the Treatment of Prisoners of War, have agreed as follows: Part I. The rationale underlying this rule can be explained on the basis that where it is discernible that persons have parachuted from an aircraft in distress and are not engaging in hostile acts, this is regarded as a form of positive conduct that signals that they no longer represent a threat to military security and thus there is no military necessity to directly target them. In sum, persons who demonstrate an intent to surrender create a rebuttable presumption that they are hors de combat and no longer a threat to the enemy. 131 The Geneva Conventions and the Death of Osama Bin Laden. and. Section 2 situates surrender within its broader historical and theoretical context in order to provide a better understanding of the development of the rule of surrender within conventional and customary international humanitarian law as well as the function of the rule of surrender during armed conflict. The principle of military necessity was intended originally therefore to operate as a principle of restraint. The ICC Statute goes farther than the Fourth Geneva Convention. Depending upon the circumstances, in the majority of instances it is likely that in order for force to be deemed necessary, the state must first utilise all reasonable measures at its disposal to communicate to the enemy an offer of surrender and, subsequently, to ascertain whether that offer has been accepted or rejected.Footnote Render date: 2023-01-18T22:59:46.379Z Indeed, it was commonplace that combatants who had surrendered were slain or, at a minimum, their lives spared only to be forced into slavery.Footnote Furthermore, the Rome Statute establishing the International Criminal Court (ICC Statute) determines that in times of internationalFootnote For example, is the waving of a white flag indicative of surrender? With regard to the law applicable during non-international armed conflict, combatancy status does not exist because states are loathe to confer on insurgents the combatancy privilege that is available in international armed conflict namely, immunity from prosecution under national law.Footnote For the lex specialis principle to apply it is not enough that the same subject matter is dealt with by two provisions; there must be some actual inconsistency between them, or else a discernible intention that one provision is to exclude the other: International Law Association, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001) Yearbook of the International Law Commission, Vol II, Pt Two, 140. Commenting upon the incident, Roberts correctly notes that while [s]urrender is not always a simple matter, the legal advice of the US military lawyer that ground forces cannot surrender to aircraft, and thus offers of surrender in such circumstances can be permissibly refused was dogmatic and wrong.Footnote 83 Once the idea that warfare might have a legal and theological basis was accepted, it followed naturally that (at least in conflicts between Christian princes) considerations of law and humanity should also influence the conduct of war.Footnote Total War, Encyclopedia Britannica Online, 2015, https://www.britannica.com/topic/total-war. 95 In Hamdi,a U.S. citizen wasaccused of being a member of the Taliban forceson U.S. soil as an "enemy combatant," and was detained by unilateral Executive decision;The U.S. Supreme Court ruled on the validity of his detention. 100. [The opponent] may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon an attempt to surrender in the midst of a hard-fought battle is neither easily communicated nor received. In the Armed Activities case the ICJ held that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration: Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), Judgment [2005] ICJ Rep 168, [216]. indicating that such conduct achieves sufficient support among states to amount to a legally recognisable act of surrender under relevant treaty and customary international humanitarian law. 58 42, Nowadays, the customary international law status of the rule of surrender is confirmed by the fact that a significant number of military manuals adopted by states which represent important sources of state practice when identifying obligations under customary international humanitarian lawFootnote Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced. Seven new ratifications since 2000 have brought the total number of States Party to 194, making the Geneva Conventions universally applicable. 36 View all Google Scholar citations If the approach described above gains traction within state practice (as it has done within academic literature),Footnote What is perhaps most surprising is that there has been relatively little consideration of the rule of surrender within international humanitarian law literature. the consequence would be that where a situation is under the control of a stateFootnote GC III (n 50) art 4A. 8 Virginia Journal of International Law Online 1, 20Google Scholar. More often than not, however, the principles of military necessity and humanity run into conflict, prompting the law in opposite directions. International Review of the Red Cross 3CrossRefGoogle Scholar. It contains no obligation "either explicit or implicit" for refugees to claim asylum in the first safe country they reach . Its customary status during non-international armed conflict is confirmed by ICRC Study (n 6) r 15. The document has no provisions for punishment, but violations can bring moral outrage and lead to trade sanctions or other kinds of economic reprisals against the offending government. Presumably, surrendered persons have only to comply with reasonable demands of their captor: captors cannot require their captives to undertake conduct that exposes them to danger and, if they refuse to comply, determine that they have committed a hostile act and are therefore liable to attack. About the Mechanism | ; Cases; Menu Or life-sustaining stars . 2005) 975CrossRefGoogle Scholar. For the purpose of this Statute, 'war crimes' means: Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under . This is significant because where state practice is widespreadFootnote To illustrate, it may not be reasonable or feasible to expect a combatant or fighter who engages his or her enemies at speed and at night to identify an offer of surrender and, as a result, refrain from making them the object of attack. Canada, Code of Conduct for CF Personnel (Office of the Judge Advocate General 2001) r 5 para 3. False surrender is a type of perfidy in the context of war. No weapons that could screw around with the laws of physics negatively . The High Contracting Parties undertake to respect 28 Additional Protocol I does not define what amounts to a hostile act but the Commentary to the Additional Protocol provides examples, such as resuming combat functions if the opportunity arises, attempting to communicate with their own party, and destroying installations and equipment belonging to their captor or to their own party.Footnote Last updates June 10, 2019 by Krystyna Blokhina, International Committee for the Red Cross and Red Crescent, 1952 Commentary on the Geneva Conventions, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of 12 August 1949, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of 12 August 1949, Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949, Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, of 8 June 1977, Reference Guide to the Geneva Conventions, List of Nations Ratifying or are Otherwise Party to the Geneva Conventions and/or Protocols, ICL Practice Relating to Rule 157, Jurisdiction over War Crimes, Category: International, Transnational, and Comparative Law, Geneva Conventions and their additional protocols, Disputes arising under the Conventions or the Protocolsare settled by courts of the member nations (Article 49 of Convention I) or by international. Despite being signatory to the Conventions, there are some notable and often-criticized U.S. cases involving conduct that would otherwise be prohibited by the Conventions, such as Hamdi v. Rumsfield(2004). 23 78 Hans-Henning Kortm, Surrender in Medieval Times in Afflerbach and Strachan (n 2) 41, 47. Combatants include those persons who are incorporated into the regular armed forces of a state by domestic law. The act of surrender, therefore, is a continuing obligation insofar as the persons surrendering must continually comply with the demands of their captor. it is a war crime to make the object of attack persons who have surrendered. Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians. 40 Edited by: . See generally 32 43 51 The Lieber Code is often regarded as providing the foundation for subsequent attempts to regulate warfare. Note that the focus of the article is upon the rule of surrender during land warfare in the context of international and non-international armed conflict. This conclusion may be different in a scenario where a commander has his or her enemy pinned down and the enemy decides to surrender but, for various reasons (such as distance between the respective parties, inimical terrain, inclement weather), the offer of surrender is not immediately apparent to the opposing commander. Attacking persons who are recognized as hors de combat is prohibited. Geneva Conventions of 1949 Germany signed the Convention of 1929, however, that didn't prevent them from carrying out horrific acts on and off the battlefield and within their military prison. The Russian Defence Ministry claims that at least 10 restrained Russian POWs were killed in a war crime Ukraine claims that Russia staged the capture of POWs and these supposed POWs opened fire on Ukrainian forces. Geneva Conventions, a series of international treaties concluded in Geneva between 1864 and 1949 for the purpose of ameliorating the effects of war on soldiers and civilians. Thus, the test imposed by international humanitarian law is whether a reasonable combatant operating in those circumstances would have been expected to discern the offer of surrender. Ober, Josiah, Classical Greek Times in Howard, Michael, Andreopoulos, George J and Shulman, Mark R (eds), The Laws of War: Constraints on Warfare in the Western World (Yale University Press, 1994) 12, 12Google Scholar. Hostname: page-component-75cd96bb89-gxqps 118 1987) 480Google Scholar. 108 Article 41(2) of Additional Protocol I and Rule 47 of the ICRC Study stipulate that a person who surrenders but subsequently engages in a hostile act or attempt[s] to escape is no longer regarded as hors de combat and again becomes liable to direct targeting.Footnote Undoubtedly, the Brussels and Oxford Manuals heavily influenced the trajectory of the Hague Peace Conferences in 1899 and 1907 and the Regulations that these conferences produced. On August 12th, 2016, the Geneva Conventions--which place limits on how war is waged and form the cornerstone of international humanitarian law (IHL)--turn 67. According to this principle, combatants could engage only in those measures that were indispensable for securing the ends of the war.Footnote 103 False surrender is a type of perfidy in the context of war. They shall in all circumstances be treated humanely, without any adverse distinction. 133 For example, Article 41(2) of Additional Protocol I expressly imposes an obligation to accept offers of surrender but merely states that a person is hors de combat where he or she expresses an intention to surrender. This is so because an individual soldier will always be adding to the military capacity of the enemy: It is a war crime under Protocol I of the Geneva Convention . They organized a provisional govern- ment for service until a permanent one might be established by the people. and non-international armed conflictFootnote The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. For a discussion of the legal framework relating to parlementaires see 117. 121 41 130 That Convention reassembled at Jefferson City, on the 22d of July, and declared the government of which Jackson was the head, to be illegal. But in wars against outsiders, infidels, or barbarians, the West had inherited a brutal legacy from the Romans which they termed bellum romanum, or guerre mortellle, a conflict in which no holds were barred and all those designated as enemy, whether bearing arms or not, could be indiscriminately slaughtered: Michael Howard, Constraints on Warfare in Howard, Andreopoulos and Shulman (n 12) 1, 3. The US Law of Armed Conflict Deskbook also rejects the use of the white flag as being declarative of surrender, and discusses the use of the white flag in the context of the 1982 Falklands Conflict:Footnote As such, the active hostilities framework [i.e. The ICRC insists that customary international law also imposes an obligation to refrain from targeting those who have surrendered, yet Rule 47 of the ICRC Study provides no further guidance on what conduct constitutes a legally effective surrender, stating merely that a person is immune from attack where he or she expresses an intention to surrender. 21 In 1907, the international community convened the first of a series of diplomatic conferences that endeavored to codify the "laws and customs of war." The first of these conferences was the 1907. No killing civilians. In the words of the Committee, the police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions: Human Rights Committee, Suarez de Guerrero v Colombia, Communication No. Section 3 explores state practice with a view to identifying when an offer of surrender is effective under international humanitarian law, and proposes a three-stage test that can be used to determine whether an enemy has extended a valid offer of surrender. Individual combatants can indicate a surrender by discarding weapons and raising their hands empty and open above their heads; a surrendering tank commander should point the tank's turret away from opposing combatants. 99. Combatants also include those members of irregular armed forces (such as militias and volunteer corps)Footnote US Department of Defense (n 77) 641. Nevertheless, available state practice, in conjunction with the wider theoretical context within which the rule of surrender operates, can be used to make general inferences and to draw tentative conclusions as to the meaning of this rule under international humanitarian law. 3. Lanni, Adriaan, The Laws of War in Ancient Greece (2008) 26 While the notion of attempting to escape is relatively self-explanatory, what constitutes a hostile act is far from clear. The Convention on Certain Conventional Weapons (1980) prohibits undetectable weapons (explosive devices made of all plastic which defeat metal detectors); mines and booby traps; firebombs and incendiary weapons; blinding lasers; or recycling used unexploded ordnance from previous wars. A US report into the incident explained:Footnote and non-internationalFootnote The emergence of knights and, in particular, the code of chivalry that governed their interactions had a considerable impact upon the legal regulation of armed conflict.Footnote William Fenrick, Specific Methods of Warfare in Elizabeth Wilmshurst and Susan Breau (eds), ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2007) 141. 30 56 10, A similar story can be told in relation to the regulation of armed conflict, and thus the regulation of surrender during ancient times. In the Court's often quoted dictum:Footnote A sovereign state may surrender following defeat in a war, usually by signing a peace treaty or capitulation agreement. According to Article 47 of Additional Protocol I of the Geneva convention a mercenary is a person who: 1. Sassli, Marco and Olson, Laura M, The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts (2008) 90 43 Copyright Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2018. provides: c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion. Similarly, although containing the rule of surrender, Common Article 3 and Article 4 of Additional Protocol II do not specify the conditions that constitute an effective surrender. The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? False surrenders are usually used to draw the enemy out of cover to attack them off guard, but they may be used in larger operations such as during a siege. Patrick E Tyler, War in the Gulf: The Overview; Iraq Orders Troops to Leave Kuwait but US Pursues Battlefield Gains; Heavy American Toll in Scud Attack, The New York Times, 26 February 1991, http://www.nytimes.com/1991/02/26/world/war-gulf-overview-iraq-orders-troops-leave-kuwait-but-us-pursues-battlefield.html?pagewanted=all. [7], The Third Geneva Convention states that prisoners of war should not be mistreated or abused. Neither treaty law, including the relevant commentaries, nor military manuals indicate that retreat is indicative of surrender. Fighters are assumed to be continually participating directly in hostilities (even during lulls in participation) and the demands of military necessity justify their direct targeting. In essence, then, whether the discarding of weapons (where a person is in possession of weapons) and placing hands above the head or waving a white flag constitute an effective method of expressing an intention to surrender boils down to whether such conduct is supported by state practice. Although this literature routinely identifies the rule of surrender as being part and parcel of modern international humanitarian law and indeed emphasises the importance of this rule within this legal framework, existing literature fails to drill down into this rule and reveal the conditions precedent for an act of surrender to be legally effective.Footnote David Leigh, Iraq War Logs: Apache Crew Killed Insurgents Who Tried to Surrender, The Guardian, 22 October 2010, https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-apache-insurgents-surrender. UN General Assembly, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (18 September 2013), UN Doc A/68/389, para 69. As a result, state practice makes it clear that the simple fact that troops are retreating does not demonstrate an intent to surrender.Footnote 2009) 8687 65 Moreover, there are few reported instances of surrender occurring during actual hostilities that have raised difficulties under international humanitarian law, meaning that by and large states have not been formally required to determine the content and scope of the rule of surrender. Is specially recruited locally or abroad, 2. . Third, where a city was subject to a siege and the city refused to surrender, once the city was stormed it was accepted that knights were permitted to sack the city and that the normal code of chivalry (and thus the rule mandating the acceptance of surrender) was inoperative.Footnote 69 24 139 Also the Geneva convention only exists on our planet and even then not every country follows it. This article explores the circumstances in which the act of surrender is effective under international humanitarian law and examines, in particular, how surrender can be achieved in practical terms during land warfare in the context of international and non-international armed conflict. 16 135 [12], The Program for Humanitarian Policy and Conflict Research at Harvard University, "IHL PRIMER SERIES | Issue #1" Accessed at, alleged false surrender of British troops at Kilmichael, "Convention (III) relative to the Treatment of Prisoners of War. 2. 83 Hague Convention (II) with respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 4 September 1900) 26 Martens Nouveau Recueil (ser 2) 949. One of the more infamous examples was the alleged false surrender of British troops at Kilmichael, during the Irish War of Independence. US Law of Armed Conflict Deskbook (International and Operational Department 2015) 78. US Corporations' September 30th fiscal payment deadline Sep 30, 2023 USA Each year around that time, as the payment deadline approaches, we see all sorts of maneuvers. Conventions Approved. Rome Statute establishing the International Criminal Court (entered into force 3 September 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(vi). The conventional view is that where civilians repeatedly directly participate in hostilities they retain their immunity from direct targeting even during intermissions in direct participation.Footnote 138 See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31, art 3; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85, art 3; Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III), art 3; GC IV (n 6) art 3 (Common Article 3). Belgium's Teaching Manual for Soldiers also supports this approach, stating that the intention to surrender may be expressed in different ways: laying down arms, raised hands, white flag.Footnote The US Corporate government seeks to roll over its payments past the deadline. For combatants in international armed conflicts, international humanitarian law is generally considered to constitute the lex specialis in relation to the amount of force to be used against enemy combatants: UN Human Rights, Office of the High Commissioner, International Legal Protection of Human Rights in Armed Conflict (United Nations 2011) 67. Just check all flip PDFs from the author THE MANTHAN SCHOOL. Person as author : MacBride, Sen In : Armaments, arms control and disarmament, a UNESCO reader for disarmament education, p. 315-327 Language : English Year of publication : 1981. book part Finally, it discusses how occupiers are to treat an occupied populace. R.11/45, 31 March 1982, UN Doc Supp No 40 (A37/40), para 13.2. The Argentine conduct was arguably treachery if those raising the white flag killed the British soldiers, but not if other Argentines fired unaware of the white flag. The Court rejected this argument andheld that consent exised since September 11, 2001, through an Authorization for Use of Military Forces (AUMF), a Congressional resolution which empowered the President to use all necessary and appropriate forces against any nations, organizations, or personsthat he determinedto have planned, authorized,committed, or aided in the September 11, 2001attacks. US Law of War Manual (n 68) para 5.4.6.3. False surrenders are usually used to draw the enemy out of cover to attack them off guard, but they may be used in larger operations such as during a siege. 1 Merriam-Webster defines "surrender" as "the action of yielding one's person or giving up the possession of something especially into the power of another", and traces the etymology to the Middle English surrendre, from French sur- or sus-, suz "under" + rendre "to give back";[1] this in turn is defined by the University of Michigan Middle English Dictionary as meaning "The giving up of an estate, a grant of land, or an interest in property to the person who holds the right to it", or, in law, "the relinquishing of letters patent to the king", or "the giving back or return of something". 20 and IV (1907)Footnote for this article. The Teaching Manual for the armed forces of Cte d'Ivoire also explains that [t]he white flag is used to indicate the intention to negotiate and to protect the persons who negotiate. international humanitarian law] regulates the use of force against all combatants, military objectives, members of an armed group belonging to a party to the [international armed] conflict, and individuals directly participating in hostilities, irrespective of their location to any active battlefield: Another way is to ceasefire, wave a white flag and emerge from a shelter with hands raised If he is surprised, a combatant can raise his arms to indicate that he is surrendering, even though he may still be carrying weapons. The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war. It does not necessarily indicate as it is often believed an intention to surrender.Footnote Civilians are liable to direct targeting for such timeFootnote 68 34 Certain states maintain the view that where civilians repeatedly participate directly in hostilities to the extent that their future participation is likely and predictable, they remain a threat to the military security of the opposing party and can be directly targeted even notwithstanding lulls in participation.Footnote As a result, virtually any conduct could be justified on the basis that it accrued a military advantage, even though it was highly dubious from a humanitarian perspective. 11 122. 5 stipulate that it is forbidden to make persons who have surrendered the object of attack. The Geneva Conventions must be understood as a human rights treaty, say Byers, created to protect individuals and not the state that signed it. 133 Cte d'Ivoire, Droit de la guerre, Manuel d'instruction, Ministre de la Dfense, Forces Armes Nationales (2007) 4647. 5 37 Close this message to accept cookies or find out how to manage your cookie settings. See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the 9th UN Congress on the Prevention of Crime and Treatment of Offenders, Havana, 27 August7 September 1990, UN Doc A/CONF.144/28/Rev.1 (1990), art 10 of which provides that before using force, law enforcement officials shall give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons. 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