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 All persons protected under these conventions must be given shelter and cared for by the party to the conflict that holds power over them. This article has explored state practice with the aim of clarifying the criteria that give rise to an effective act of surrender under conventional and customary international humanitarian law in times of international and non-international armed conflict. Additional Protocol I (n 6) art 51(3). Mattox, John Mark, Saint Augustine and the Theory of Just War (Continuum 15 Second, after a careful examination of state practice, the article proposes a three-stage test for determining whether persons have surrendered under international humanitarian law: (1) Have persons attempting to surrender engaged in a positive act which clearly reveals that they no longer intend to participate in hostilities? 137 Convention I: This convention protects wounded and infirm soldiers and ensures humane treatment without discrimination founded on race, color, sex, religion or faith, birth or wealth, etc. 21 88 Military manuals which, as I have already explained, represent important sources of state practice that can be used to interpret treaty rules and obligations under customary international humanitarian law generally fail to address how surrender can be achieved in practical terms during land warfare. American Journal of International Law 213, 217CrossRefGoogle Scholar. For this reason it is a cardinal principle and intransgressible rule of international humanitarian law that civilians cannot be directly targeted.Footnote It entered into force 19 June 1931. 20 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. The law of war obligates a party to a conflict to accept the surrender of enemy personnel: ibid. Such persons are known as parlementaires. In particular, it was the cruelties of the Thirty Years War that ultimately led to the jurisprudential consideration of the jus in bello [the law of war] and established a number of principles to be observed by combatants.Footnote 34 indeed, surrender is 'one of the most important rules' 1 of international humanitarian law because it is the ' [principal] device for containing destruction and death in our culture of war'. 36 For information on immigration and links to the 1951 Conventionand 1967 Protocol Relating to the Status of Refugees, see the article aboutImmigration. Two additional protocols to the 1949 agreement were approved in 1977. Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). Leiden Journal of International Law 315, 343CrossRefGoogle Scholar. explains that it is prohibited [t]o kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion. If Lewis's claim is false, however, the claim itself is dangerous. The article is structured as follows. As civilians do not directly participate in hostilities they do not pose a threat to the military security of the opposing party. August 4, 2011 04:00:00 pm. Last updated in June of 2017 by Stephanie Jurkowski. The Manual then proceeds to explain that [e]verything depends on the circumstances and conditions of the particular case. 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. 117 hasContentIssue true, The Legal Development of the Rule of Surrender. Although not a source of law, since its publication the Interpretive Guidance has gained traction among states and is thus becoming the authoritative guidance on the law of targeting: 118 11 Given the centrality of the rule of surrender to realising the humanitarian objectives of international humanitarian law, it is paramount that those involved in armed conflict are aware of what conduct constitutes an act of surrender under international humanitarian law and thus when its attendant legal obligation to cease fire is triggered. Jewish & Christian scriptures, science facts, safety & reminder tips, cuisine, sports, books, art, music, movies, TV. 64 Once Islam is defined as inherently violent and . As the law of non-international armed conflict in the context of targeting is currently unclear,Footnote According to the Israeli Military Manual, it is absolutely forbidden in the strongest terms to attack such a combatant [one who has surrendered]. 23 13, The regulation of armed conflict during ancient Rome is captured by Cicero's well-known proverb from 50 BC: silent enim leges inter arma (the law stands silent in times of war).Footnote This approach is consistent with the obligation arising under the law of internationalFootnote In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. False surrender is a type of perfidy in the context of war. 89 As a result, they re-emerge as a threat to military security and the opposing force is justified in making them the object of attack. The Schedules. General de Brigada Pablo Duarte, Secretara de Estado de las Fuerzas Armadas (1980) 67. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (as amended 21 December 2001) (entered into force 2 December 1983) 1342 UNTS 137. 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. The first Convention was initiated by what is now the International Committee for the Red Cross and Red Crescent (ICRC). Cte d'Ivoire, Droit de la guerre, Manuel d'instruction, Ministre de la Dfense, Forces Armes Nationales (2007) 4647. Additionally, the ICRC Study determined that the content of art 4 is contained (albeit implicitly) in Common Article 3 to the Four Geneva Conventions of 1949, which can be regarded, therefore, as imposing a legal obligation upon state parties to refrain from making the object of attack persons who have surrendered during a non-international armed conflict: ICRC Study (n 6) 165, r 47 and accompanying commentary. and (3) Have surrendered persons unconditionally submitted to the authority of their captor? 110. Furthermore, the Rome Statute establishing the International Criminal Court (ICC Statute) determines that in times of internationalFootnote 58 within the international society and coupled with opinio juris (the belief that the practice is required by international law), such customary practices give rise to international legal obligations.Footnote While other international humanitarian law treaties impose an obligation upon opposing forces to accept valid offers of surrender, they do not provide any guidance as to the type of conduct (verbal or otherwise) that signifies an intention to surrender. It specifically prohibits murder, mutilation. The Geneva Convention is a standard by which prisoners and civilians should be treated during a time of war. The law of international armed conflict defines civilians in negative terms as those persons who do not qualify as combatants.Footnote The High Contracting Parties undertake to respect 24 A number of academics also hold this view: eg, Sandesh Sivakumaran, The Law of Non-International Armed Conflict (Oxford University Press 2012) 413 (an intention to surrender is indicated in the form of waving a white flag or discarding weapons and placing hands on heads). 59 Sandoz, Swinarski and Zimmermann (n 1) 48687. Geneva Convention relative to the Protection of Civilian Persons in Time of War (2nd part) ADOPTED 12 August 1949 BY the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August 1949 Share View ratification status by country Table of Contents Part I 103 128. Where they directly participate in hostilities they have the legal capacity to surrender and, in order to do so, they must engage in a positive act that clearly demonstrates their intention that they no longer wish to participate in hostilities. "useRatesEcommerce": false If they did take prisoners it was only young women or some women and children. 114, In light of this disagreement, Henderson is surely correct in his assertion that [t]he flying of a white flag is not a definite symbol of surrender.Footnote Article 42 of Additional Protocol I provides that in an international armed conflict no person parachuting from an aircraft in distress shall be made the object of attack during his descent and, upon reaching enemy territory, he or she must be given a reasonable opportunity to surrender before being made the object of attack, unless it is apparent that he is engaging in a hostile act. By and large, however, the treaties do not fully delineate the meaning of the rule of surrender and, while military manuals overwhelmingly require that armed forces do not make surrendered persons the object of attack, they generally fail to specify the conditions that constitute a legally effective surrender. Have persons who are attempting to surrender engaged in a positive act which clearly indicates that they no longer intend to directly participate in hostilities? 110 99 The First Geneva Convention was presided over by Swiss general Guillaume Henri Dufour on August 22, 1864. That it is only those members of an organised armed group possessing a continuous combat function to directly participate in hostilities who are to be regarded as combatants derives from the ICRC's Interpretive Guidance, ibid 25. 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. Scriptures from major world religions, safety tips & reminders, science facts, world cuisine, entertainment, pets, life discussion topics, and more. Schmitt, Michael N, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance (2010) 50 A surrender may be accomplished peacefully or it may be the result of defeat in battle. As Sassli and Olson explain, case law in this area is clearly contradictoryFootnote 138. 122 Even more so forbidding the use of superweapons on or near civilian populations. 60. 131 if we accept arguendo that this view represents lex lata (the law as it stands) civilians who repeatedly directly participate in hostilities possess the capacity to surrender and, in order to become hors de combat and enjoy immunity from direct targeting, they must perform a positive act which signals that they no longer intend to participate in hostilities. 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. [11] 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. For example, the Human Rights Committee determined that Colombia had failed to comply with its international human rights law obligations when using force against members of an organised armed group because Colombian forces did not offer their opponents the opportunity to surrender before targeting (and killing) them. 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. For a good discussion of surrender in ancient Rome see Loretana de Libero, Surrender in Ancient Rome in Afflerbach and Strachan (n 2) 29. Now that the theoretical basis for the rule of surrender has been revealed, it can be utilised as a lens through which state practice relating to surrender can be observed and scrutinised. (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? [4], When the parties agree to terms, the surrender may be conditional; that is, the surrendering party agrees to submit only after the victor makes certain promises. [10], False surrender is a type of perfidy in the context of war. 112 It defines their rights and sets down detailed rules for their treatment and eventual release. The picture is more complex in relation to the white flag. 2010) 266Google Scholar. Where a valid offer of surrender is communicated to an opponent, there is a legal obligation upon the opponent to accept that offer and to refrain from making surrendered persons the object of attack. The other two are whether he is "in the power of an adverse Party," or . 81 In short, while international humanitarian law permits parties to an armed conflict to attack (and kill) enemies, even where they are not engaging in threatening behaviour (and assuming they are not hors de combat), international human rights law permits a state to use force only where it is necessary and proportionate in the circumstances prevailing at the time.Footnote 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. For example, Cameroon's Instructor's Manual explains that the white flag is the symbol of surrender of troops and engages the adversary to respect immediately the ceasefire rules.Footnote In its legal dimension, where a valid offer of surrender is communicated to and received by an opposing force, it is legally obligated to accept that offer and refrain from making surrendered persons the object of attack.Footnote 01 Jan 2023 20:41:32 19 Source. 3 127 72 Close this message to accept cookies or find out how to manage your cookie settings. Given their legal immunity from direct targeting, civilians do not have the legal capacity to surrender. 47 The leaders of the surrendering group negotiate privileges or compensation for the time, expense and loss of life saved by the victor through the stopping of resistance. (underscore in the original). Note: This article addresses the international humanitarian law, or law of war. 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 . Schedule 1 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949. It is a war crime under Protocol I of the Geneva Convention. 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. US Law of War Manual (n 68) para 5.9.3.2.; France, Manuel de Droit des Conflits Arms, Ministre de la Dfense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit europen, Bureau du droit des conflits arms (2001) 105; Belgium, Droit de la Guerre, Dossier d'Instruction pour Soldat, l'attention des officiers instructeurs, JS3, Etat-Major Gnral, Forces Armes belges, undated, 15; Cameroon, Droit des conflits arms et droit international humanitaire, Manuel de l'instructeur en vigueur dans les forces de dfense, Prsidence de la Rpublique, Ministre de la Dfense, Etat-major des Armes (2006) 256; Benin, Le Droit de la Guerre, III fascicules, Forces Armes du Bnin, Ministre de la Dfense nationale (1995); Chad, Droit international humanitaire, Manuel de l'instructeur en vigueur dans les forces armes et de scurit, Ministre de la Dfense, Prsidence de la Rpublique, Etat-major des Armes (2006). Although this is a controversial interpretation of international humanitarian law,Footnote International Review of the Red Cross 881, 889CrossRefGoogle Scholar. 78 [8] US Army policy, for example, requires that surrendered persons should be secured and safeguarded while being evacuated from the battlefield. See, eg, Human Rights Committee, Suarez de Guerrero (n 82). At the heart of the principle of humanity was the premise that all humans qua humans possessed an inherent human dignity and that the law [is] an indispensable instrument for advancing human dignity.Footnote In addition, Rule 48 of the ICRC Study explains that in times of international and non-international armed conflict, customary international law prohibits making persons parachuting from an aircraft in distress the object of attack.Footnote (c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape. 15 [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. It is prohibited to order that there shall be no survivors. 54 The Fourth Geneva Convention of 1949 extends the protection of civilians and prisoners of war during military occupation, even in the case . It is not just a matter of whether he "immediately surrendered""clearly expressing an intention to surrender" is only one of three conditions under this rule. 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 Marsh, Jeremy and Glebe, Scott L, Time for the United States to Directly Participate (2011) 1 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 However, where persons parachute from an aircraft and are not in distress, or are in distress but nevertheless engage in a hostile act, a threat to military security is present and they may be made the object of attack. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. Ms Evans is wrong to claim that, under the Geneva Convention, refugees should seek refuge in the first safe country they come to. 69 [5] An early example of a military surrender is the defeat of Carthage by the Roman Empire at the end of the Second Punic War. 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. United Nations | International Residual Mechanism for Criminal Tribunals UN IRMCT. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 16, first para. The Geneva Conventions must be understood as a human rights treaty, say Byers, created to protect individuals and not the state that signed it. 64 54 and reveals that targeting is to be conducted according to the more permissive standards set by international humanitarian law rather than the more restrictive standards imposed by international human rights law.Footnote Without a legal guarantee that they will not be made the object of attack once they have laid down their weapons and submitted themselves to the authority of their enemy, there would be no incentive for those persons engaged in hostilities to surrender and fights to the death would invariably ensue, thereby prolonging armed conflict and fuelling unnecessary violence and suffering. The United States, for example, claims that [w]aving a white flag technically is not a sign of surrender, but signals a desire to negotiateFootnote The ICRC, for example, expressly considers and then rejects this contention: Melzer (n 57) 70. that is party to a non-international armed conflict, targeting decisions must be guided by the standards set by international human rights law, which means that states must make all reasonable efforts to communicate to their enemies the offer of surrender before they can be directly targeted. As art 38(1)(b) of the Statute of the International Court of Justice explains, customary international law forms on the basis of general [state] practice accepted as law: Statute of the International Court of Justice (entered into force 24 October 1945) 1 UNTS XVI, art 38(1)(b). Most of us can still recall that false dawn, that phase of hope. Though 16 governments signed the conventions in 1864, Great Britain, Germany, Sweden and the United States did not; the U.S. Congress finally ratified the conventions in 1882, making it the. Robertson, Horace, The Obligation to Accept Surrender (1995) 68 Lubell (n 80) 750. The exception here is 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. That the onus is upon those wishing to surrender to indicate unambiguously that they no longer intend to take a direct part in hostilities explains why international humanitarian law does not impose an obligation upon an opposing force to first offer its enemy the opportunity to surrender before making them the object of an attack,Footnote Art 32 of the Hague Regulations 1907 (n 48) provides that persons who cross the battlefield in order to conduct negotiations with the opposing force cannot be made the object of attack from the moment they assume this role until the moment it is concluded. Thus, persons who refuse to obey demands to kneel or to lie on the ground, place their hands behind their back, remain silent, stand still and so on, do not submit to the authority of their opponent and do not surrender for the purpose of international humanitarian law. 8 28 The Lieber Code is often regarded as providing the foundation for subsequent attempts to regulate warfare. 2009) 22Google Scholar. 51 (2) Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? In other instances, however, international tribunals and human rights bodies have deviated from Nuclear Weapons and applied human rights law standards in determining the legality of the use of force by states.Footnote Another important question is whether combatants are required to offer vanquished forces the opportunity to surrender before direct targeting can commence? False surrender is a type of perfidy in the context of war. 10, A similar story can be told in relation to the regulation of armed conflict, and thus the regulation of surrender during ancient times. The moral argument for this is that as long as the soldier is participating in the military effort, he knowingly risks his life. According to this principle, combatants could engage only in those measures that were indispensable for securing the ends of the war.Footnote Accordingly, I propose a three-stage test for determining when an act of surrender is legally effective under international humanitarian law: 1. This is significant because where state practice is widespreadFootnote 119 International tribunals have determined that during times of international and non-international armed conflict international humanitarian law does not displace the obligations imposed upon states by international human rights law.Footnote 115, One final question remains. Statute of the International Court of Justice (n 41) art 38(1)(b). 60 65 61 61 International Review of the Red Cross 599, 606CrossRefGoogle Scholar. Attacking persons who are recognized as hors de combat is prohibited. Murray, Daragh and others, Practitioners Guide to Human Rights Law in Armed Conflict (Oxford University Press A US report into the incident explained:Footnote and IV (1907)Footnote 48 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. Additional Protocol I Article 10 of the 1977 Additional Protocol I provides: 1. 21 Published online by Cambridge University Press: Article 41(1) further explains that a person hors de combat shall not be made the object of attack; Article 41(2) explains that a person is hors de combat if he clearly expresses an intention to surrender. The ICRC's Interpretive Guidance provides a fuller discussion of when a person can be regarded as directly participating in hostilities: Melzer (n 57) 4164. 123 Given that the relevant treaties are silent as to the conduct that constitutes an act of surrender, state practice becomes an important indicator of the ways in which ambiguous or unclear treaty provisions must be interpreted.Footnote 23 This is so because an individual soldier will always be adding to the military capacity of the enemy: Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians. 1985) 6Google Scholar. Share and download Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales) for free. A request to advance across the battlefield to enter into negotiations is made by waving the white flag, which then must either be accepted or rejected by the opposing force. 101 Any males of fighting age or the elderly that fell into band warriors power were simply killed. stipulate that it is forbidden to make persons who have surrendered the object of attack. ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. 71 During the American Civil War the US government charged the renowned American-German jurist Francis Lieber to draft a document which contained the basic principles and accepted rules of war on land to regulate the conduct of the Union's military forces during its armed conflict with the Confederate army. 126 4 16 If this is the case, it becomes clear that in order to surrender it is incumbent upon such persons to perform a positive act,Footnote American Journal of International Law 239CrossRefGoogle Scholar. For example, is the waving of a white flag indicative of surrender? It was certified on March 25, 1935 and it was subsequently ratified by the Filipino people in a plebiscite on May 14, 1935. An interesting incident came to light in October 2010 as a result of classified US military logs being published by the whistle-blower website Wikileaks.Footnote See generally It is a war crime under Protocol I of the Geneva Convention . 32 Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (Cambridge University Press It is well established that feigning surrender in order to invite the confidence of an enemy is a perfidious act. Power of an adverse party, & quot ; in the circumstances prevailing at the time for the party. Is forbidden to make persons who are recognized as hors de combat prohibited. Security of the Red Cross 599, 606CrossRefGoogle Scholar Zimmermann ( n 80 ) 750 civilian populations Journal... Power were simply killed protocols to the 1949 agreement were approved in 1977 share download. To a conflict to accept cookies or find out how to manage your cookie settings enemy personnel: ibid or... 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