51 Law and History Review 469, 47677CrossRefGoogle Scholar. In the Court's often quoted dictum:Footnote Roman forces did not therefore regard themselves as being subject to a legal obligation to accept offers of surrender.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 In ancient Greece Greek religious beliefs did not give rise to ethical or humanitarian limitations on the conduct of warfare.Footnote Similarly, the Dominican Republic's Military Manual accepts that once a white flag is waved this signals an intent to surrender and the opposing force must cease firing from that moment: The enemy soldier may reach a point where he would rather surrender than fight. 136 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. The Geneva Convention of 1949 was negotiated after World War II to update the first three treaties and add a fourth to protect civilians. No weapons that could screw around with the laws of physics negatively . Lubell (n 80) 750. R.11/45, 31 March 1982, UN Doc Supp No 40 (A37/40), para 13.2. } I doubt after the fall of humanity with dark forces living on the moon and superpowered zombies defending earth we still hold the Geneva convention as anything more than a . To that end, the Convention prohibits torture, assaults upon personal dignity, and execution without judgment(Article 3). 2006)Google Scholar. International Review of the Red Cross 599, 606CrossRefGoogle Scholar. 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 singular term "Geneva Convention" is often used to refer to the agreement of 1949. 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". 101 The peacemaking symbolism of the white flag is now enshrined in the Geneva Convention, though it's rarely mentioned in national flag codes. Sandoz, Swinarski and Zimmermann (n 1) paras 162122. 7 3, After uncovering the theoretical basis for the rule of surrender and after identifying relevant state practice in the context of this rule, the objective of this article is to fill this gap in scholarship by clarifying the type of conduct that constitutes an act of surrender under international humanitarian law. 71 The ICC Statute goes farther than the Fourth Geneva Convention. 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 CrossRefGoogle Scholar. Sandoz, Swinarski and Zimmermann (n 1) 48687. 10, A similar story can be told in relation to the regulation of armed conflict, and thus the regulation of surrender during ancient times. With regard to non-international armed conflict, Article 4 of Additional Protocol II delineates a number of fundamental guarantees and specifically states: All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honor and convictions and religious practices. 51 49 Virginia Journal of International Law 795, 798Google Scholar. 2016) 4951 Green, Leslie, The Contemporary Law of Armed Conflict (Manchester University Press how and why people become prisoners of war, as well as when surrender must be accepted if recognized (although a false surrender or similar ruse would constitute a war crime in its own right . Jewish & Christian scriptures, science facts, safety & reminder tips, cuisine, sports, books, art, music, movies, TV. The other two are whether he is "in the power of an adverse Party," or . 1987) 480Google Scholar. Every Statebound by the treaties is under the legal obligation to search for and prosecute those in its territory suspected of committing such crimes, regardless of the nationality of the suspect or victim, or of the place where the act was allegedly committed. 6 Perhaps the thorniest issue is what positive act (or acts) are recognised by international humanitarian law as expressing an intention to surrender. 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. Geneva, 12 August 1949", "FM 19-40 Enemy pisoners of war and civilian internees", "Code of Conduct for Members of the United States Armed Forces", "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977", Tom Barry, Guerilla Days in Ireland, Anvil Books Ltd, FP 1949, 1981, https://en.wikipedia.org/w/index.php?title=Surrender_(military)&oldid=1118630279, This page was last edited on 28 October 2022, at 01:42. Scriptures from major world religions, safety tips & reminders, science facts, world cuisine, entertainment, pets, life discussion topics, and more. Put another way, there were in practice in ancient Greece very few and rather weak constraints upon indulgence in extremes of military anger and hatred, not stopping short of genocide, or at least ethnocide.Footnote 41 127 69 During the period of direct participation civilians are able to surrender and, as with combatants, in order to do so they must perform a positive act which clearly indicates that they no longer intend to directly participate in hostilities. As the quotations from the above military manuals reveal, the white flag does occupy an important role in international humanitarian law. The ICRChas a special role given by the Geneva Conventions: it handles, and is granted access to, the wounded, sick, and POWs. (underscore in the original). A British lieutenant and two soldiers advanced to accept what they thought was a proffered surrender. Citing the numerous manuals that impose an obligation upon armed forces to accept valid offers of surrender, Rule 47 of the customary international humanitarian law study by the International Committee of the Red Cross (ICRC) explains that the rule of surrender is a principle of customary international law applicable during international and non-international armed conflict. 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. 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. When is Surrender Effective under International Humanitarian Law? 80 120 Upload your PDF on PubHTML5 and create a flip PDF like Popular Stories of Ancient Egypt . It grants the ICRC the right to offer its services to the parties to the conflict. Francis Lieber, Instructions for the Government of Armies of the United States in the Field, General Order No 100, 24 April 1863 (Lieber Code), art 14. 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 For a more detailed discussion of decisions of UN human rights bodies that have applied international human rights law in determining the legality of the use of force by states during non-international armed conflicts see Sassli and Olson (n 71) 61112. Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno, Commentary to Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 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. 01 Jan 2023 20:41:32 For the first time we witnessed an intellectual appraisal of the conduct of hostilities, the recognition that warfare needed to be subject to limitations, and that these limitations could be achieved through the imposition of legal regulation. stipulate that it is forbidden to make persons who have surrendered the object of attack. 61 While there was a clear obligation not to make objects of attack enemy knights who had surrendered, captured knights could still be sold for ransom: John Gillingham, Surrender in Medieval Europe An Indirect Approach in Afflerbach and Strachan (n 2) 55, 68. They organized a provisional govern- ment for service until a permanent one might be established by the people. 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. 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 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. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, paras 78, 79. Project of an International Declaration concerning the Laws and Customs of War 1874, adopted by the Conference of Brussels, 27 August 1874 (the Brussels Manual), art 13(d). 29 See, eg, Doswald-Beck (n 70), Lubell (n 80), Sassli and Olson (n 71), Murray and others (n 86) para 511. Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). 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. Rule 47 reads: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. 53 55 Specifically, it prohibits attacks on civilian hospitals, medical transports, etc. Like Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales)? 65 133 54 It may be reasonable, for example, for the commander to utilise readily available equipment (such as night vision goggles or high performance binoculars) to check whether the enemy has expressed an intention to surrender before they are engaged, provided, of course, that the time spent preparing the equipment or using it does not compromise military objectives. A consensus was growing that, although war might still be a necessary element in international politics it should be waged, so far as possible, with humanity: Howard (n 24) 6. 5 His opponent either may not see his surrender, may not recognize his actions as an attempt to surrender in the heat and confusion of battle, or may find it difficult (if not impossible) to halt an onrushing assault to accept a soldier's last minute effort to surrender. 29-10-2010 Overview The third Geneva Convention provides a wide range of protection for prisoners of war. It is a war crime under Protocol I of the Geneva Convention . 71 https://doi.org/10.1017/S0021223717000279, Commentary to Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Going Down with Flying Colours: Naval Surrender from Elizabethan to Our Own Times, How Fighting Ends: A History of Surrender, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, Development and Principles of International Humanitarian Law, The Laws of War: Constraints on Warfare in the Western World, Saint Augustine and the Theory of Just War, The Handbook of International Humanitarian Law, Chivalry Without a Horse: Military Honour and the Modern Law of Armed Conflict, The Law of Armed Conflict: Historical and Contemporary Perspectives, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War, Military Necessity and the Culture of Military Law, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance, The Conduct of Hostilities under the Law of International Armed Conflict, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, On Target: Precision and Balance in the Contemporary Law of Targeting, Time for the United States to Directly Participate, Virginia Journal of International Law Online. International Review of the Red Cross 737, 738CrossRefGoogle Scholar. Case of Abella v Argentina (Tabala) (1997) Inter-Am Ct HR, Case No 11.137, Report No 55/97, 18 November 1997. it is a war crime to make the object of attack persons who have surrendered. Also, although surrendered persons cannot be made the object of attack, they can be the victims of incidental injury as a result of attacks against lawful targets provided that the collateral damage is not excessive in relation to the concrete and direct military advantage anticipated: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force 8 June 1977) 1125 UNTS 3 (Additional Protocol I), art 51(5)(b); Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross (ICRC) and Cambridge University Press 2005, reprinted 2009) (ICRC Study) r 14. International humanitarian law (IHL) also protects other persons deprived of liberty as a result of armed conflict. Guidance on how a person expresses an intention to surrender is provided by the Official Commentary to Article 41(2) of Additional Protocol I:Footnote 104 As Lubell explains, [w]hen we actually come to apply human rights law in practice to situations of armed conflict, certain difficulties do appear: This was known as the doctrine of dedito: as soon as opposing forces fell into the hands of the Romans they no longer technically existed and their Roman captors could do with their captives as they pleased. 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. 54 When he is clearly asking to surrender and exit from the fight or while he is incapable of participating in combat actively, there is no moral justification in attacking him, nor is there any military necessity to do so: Israel, Rules of Warfare on the Battlefield, Military Advocate-General's Corps Command, IDF School of Military Law (2006) 29. War crimes are defined as acts which violate the laws and customs of war (established by the Hague Conventions of 1899 and 1907), or acts that are grave breaches of the Geneva Conventions and Additional Protocol I and Additional Protocol II. Schmitt, Michael N and Widmar, Eric W, On Target: Precision and Balance in the Contemporary Law of Targeting (2014) 7 Second, this code of conduct (and so the legal obligation to accept surrender) applied only between knights who were within Christendom: the code [of chivalry] was intended to apply only to hostilities between Christian princes and was seldom applied outside that context, for example, in the Crusades.Footnote 2. Has data issue: true 2005) 975CrossRefGoogle Scholar. 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. 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. The Lieber Code (as it became known) was promulgated by US President Abraham Lincoln to Union forces in 1863 and represented the first attempt to codify and systematise the law of war generally and the rule relating to surrender in particular. 59 Under the first and second Geneva Conventions of 1949, the belligerents must protect the sick, wounded and shipwrecked as well as medical personnel, ambulances and hospitals. United Kingdom, Joint Service Manual of the Law of Armed Conflict (2004) paras 10.510.5.1. 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 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 The view is that where a state and an organised armed group are actually engaging in armed hostilities, this is precisely the scenario where humanitarian law is designed to apply. 74 Sandoz, Swinarski and Zimmermann (n 1) 487. 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. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. False. 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. If in command, I will never surrender the members of my command while they still have the means to resist". 55 International Review of the Red Cross 881, 889CrossRefGoogle Scholar. 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. 46 More often than not, however, the principles of military necessity and humanity run into conflict, prompting the law in opposite directions. CrossRefGoogle Scholar. The Fourth Geneva Convention of 1949 extends the protection of civilians and prisoners of war during military occupation, even in the case . Roberts further notes that [t]he issue is not that ground forces simply cannot surrender to aircraft. [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. Other emblems were later recognized, and the Geneva Conventions of 1949, the main topic of this article, confirmed them all. 31 Or they can keep on winning battle after battle using more hi tech weapons destroying the majority of the Russian land forces not forgetting a couple of ships a fair few fighter jets and a shit load of tanks ,howitzers , munition st. 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 The Geneva Conventions must be understood as a human rights treaty, say Byers, created to protect individuals and not the state that signed it. Scheffer, "Towards a Modern Doctrine," p. 289; United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948), Article I. Julie Mertus goes further: "If the target state is party to any of the relevant human rights conventions, or if the human right can be said to be customary international law applicable to . It is prohibited to order that there shall be no survivors. 101 22 111 84. 47 [T]here is little evidence that the archaic and classical Greeks enacted internationally recognised laws governing the practice of warfare: 38 99 Last updated in June of 2017 by Stephanie Jurkowski. 5 For instance, in practice, the white flag has come to indicate surrender if displayed by individual soldiers or a small party in the course of an action.Footnote 91 General Provisions Art 1. A sovereign state may surrender following defeat in a war, usually by signing a peace treaty or capitulation agreement. 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. 14 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 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. United Nations | International Residual Mechanism for Criminal Tribunals UN IRMCT. 107 This issue is relevant because during the First Gulf War, American forces overran Iraqi troops near the KuwaitIraq border and American forces continued to directly target Iraqi forces even though they were in clear retreat. Heavily influenced by the dictates of Christianity and especially the writings of the leading teachers in the Catholic Church, it was during the Medieval Ages that concerted attempts were made to construct a detailed regulatory framework to govern armed conflict and mitigate the horrors of war. 125 which stipulates that in times of an international armed conflict it is a war crime to kill or wound a person who, having laid down his arms or having no means of defence, has surrendered at discretion. 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. Paul Cartledge, Surrender in Ancient Greece in Afflerbach and Strachan (n 2) 15, 21. 122 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. Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 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 See generally Initially, the Manual explains that:Footnote [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. Even in the absence of physical apprehension a person can be so utterly in the power of the opposing force that he or she can no longer be regarded as representing a military threat. (2) Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? As the International Criminal Tribunal for the Former Yugoslavia (ICTY) would later explain, [t]he essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of human dignity in every person The general principle of respect for human dignity is the very raison dtre of international humanitarian law and human rights law: ICTY, Prosecutor v Furundzija, Judgment, IT-95-17/I-T, Trial Chamber II, 10 December 1998, [183]. 95 68 Tieya, Wang and Min, Wei, International Law (Falu Chubanshe At present, 168 States are party to Additional Protocol I and 164 States to Additional Protocol II,this still places the 1977 Additional Protocols among the most widely accepted legal instruments in the world. 102 No clear rule exists as to what constitutes surrender. 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 112 116 In the words of the United States Law of War Deskbook (which is distributed as part of the Judge Advocate Officer Graduate and Basic Courses), the burden is upon the surrendering party to make his intentions clear, unambiguous, and unequivocal to the capturing unit.Footnote It also grants the right to proper medical treatment and care. Indeed, surrender is one of the most important rulesFootnote 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 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. 113. They shall in all circumstances be treated humanely, without any adverse distinction. During the Battle for Goose Green, some Argentinean soldiers raised a white flag. If international human rights law were to govern the manner in which a party to an armed conflict targets its enemy this would have a profound impact upon whether and to what extent force can be used permissibly. 88 As a result, state practice makes it clear that the simple fact that troops are retreating does not demonstrate an intent to surrender.Footnote The Brussels Manual of 1874, although never attaining the status of treaty law, also precluded the refusal of quarter.Footnote France's Manual on the Law of Armed Conflict explains that [a]n intention to surrender must be clearly expressed; by raising hands, throwing down weapons or waving a white flag.Footnote Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced. 80 12 Article 23 of both the Hague Conventions II (1899)Footnote 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. Thus, rather than imposing restraint, military necessity acted as a permissiveFootnote 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. 65 60. 85 Civilians are liable to direct targeting for such timeFootnote 132 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]. 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