[9], While not a formal military law, the Code of the US Fighting Force disallows surrender unless "all reasonable means of resistance [are] exhausted and certain death the only alternative": the Code states, "I will never surrender of my own free will. 135 A surrender may be accomplished peacefully or it may be the result of defeat in battle. Russian Defense Ministry spokesman Maj. Gen. Igor Konashenkov declined Sunday to give numbers on how many Russian troops had been killed or captured but said more Ukrainians than Russians had been. Liivoja, Rain, Chivalry Without a Horse: Military Honour and the Modern Law of Armed Conflict in Liivoja, Rain and Saumets, Andres (eds), The Law of Armed Conflict: Historical and Contemporary Perspectives (Tartu University Press As such, the active hostilities framework [i.e. As the ICTY explained in the Tadi judgment, when identifying state practice in the context of customary international humanitarian law reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions: ICTY, Prosecutor v Tadi, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-AR72, Appeals Chamber, 2 October 1995, [99]. Another important question is whether combatants are required to offer vanquished forces the opportunity to surrender before direct targeting can commence? Yet, the circumstances in which international human rights law is operative during international and non-international armed conflict is far from clear and this is particularly so in relation to the law of targeting.Footnote If the approach described above gains traction within state practice (as it has done within academic literature),Footnote Case of Abella v Argentina (Tabala) (1997) Inter-Am Ct HR, Case No 11.137, Report No 55/97, 18 November 1997. Yoram Dinstein, Military Necessity, Max Planck Encyclopedia of Public International Law, September 2015, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e333. This is the original sense of applicability, which predates the 1949 version. Murray, Daragh and others, Practitioners Guide to Human Rights Law in Armed Conflict (Oxford University Press 82, In the Nuclear Weapons advisory opinion the ICJ opined that during times of armed conflict (presumably encompassing both international and non-international armed conflict) the legality of the use of lethal force must be determined according to the applicable lex specialis meaning that the law governing a specific subject matter takes precedence over law that regulates general matters where there is inconsistency between themFootnote 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 Laws of War on Land, 9 September 1880 (the Oxford Manual), art 9(b). Published online by Cambridge University Press: Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 16, first para. "useRatesEcommerce": false It is a war crime under Protocol I of the Geneva Convention. Hors de combat is a French phrase commonly used in international humanitarian law to mean out of combat. 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. 71 The US explains that [s]urrender may be made by any means that communicates the intent to give up. 45 In doing so, these manuals incorrectly instruct their armed forces to recognise that those who wave a white flag cannot be attacked and that, by implication, if they themselves wish to surrender, the waving of a white flag is an effective method of manifesting this intention to the enemy. Indeed, it is for this reason that Article 42 of Additional Protocol I expressly provides that airborne troops are not protected by this rule airborne troops are militarily active and have yet to engage in a positive act that indicates an intention to place themselves hors de combat. 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. 47 Feature Flags: { 87 Article 23 of both the Hague Conventions II (1899)Footnote 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. 119 Although r 15 of the ICRC Study (n 6) requires precautions to be taken to avoid or minimise incidental loss of civilian life, injury to civilians and damage to civilians, r 15 should be read as an obligation to avoid or minimise harm to non-military objects generally (including those hors de combat). A person hors de combat is: (a) anyone who is in the power of an adverse party; (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or. They were killed by enemy fire in a disputed incident. 24 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. 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. A British lieutenant and two soldiers advanced to accept what they thought was a proffered surrender. However, rather than engaging in an intensive analysis of the rule of surrender during land warfare, Robertson's contribution is a case study that focuses upon whether Iraqi soldiers manning oil platforms during the First Gulf War had effectively expressed an intention to surrender under international humanitarian law before they were attacked by US helicopters. 2014) 187, 188Google Scholar. 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? 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: As Oeter explains, the obligation to accept valid offers of surrender constitutes in essence a logical expression of the principle that the legal use of military violence is strictly limited to what is required by military necessity; clearly there is no necessity to kill persons hors de combat: Stefan Oeter, Methods and Means of Combat in Fleck (n 19) 115, 18687. 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 63 Twenty-six countries ratified the Conventions in the early 1990s, largely in the aftermath of the break-up of the Soviet Union, Czechoslovakia and the former Yugoslavia. He may signal to you with a white flag, by emerging from his position with arms raised or yelling to ceasefire.Footnote 139. When a soldier surrenders, the army that takes. 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 57 (3) Have the persons surrendering unconditionally submitted themselves to the authority of their captor? As in ancient Greece, combatants who sought to surrender during armed conflict in ancient Rome were in an extremely precarious position and their fate was entirely at the discretion of the opposing force: the offer of surrender could permissibly be refused and combatants slain. Law and History Review 469, 47677CrossRefGoogle Scholar. Is retreat tantamount to surrender? The Geneva Conventions must be understood as a human rights treaty, say Byers, created to protect individuals and not the state that signed it. [5] Over time, generally accepted laws and customs of war have been developed for such a situation, most of which are laid out in the Hague Convention of 1907 and the Geneva Conventions. According to Article 47 of Additional Protocol I of the Geneva convention a mercenary is a person who: 1. 95 In the context of an international armed conflict, Article 40 of Additional Protocol I explains that it is prohibited to order that there shall be no survivors. Contrary to popular belief, the waving of a white flag is not a legally recognised method of expressing an intention to surrender under either conventional or customary international humanitarian law it does not attract sufficient support within state practice and, indeed, the practice of a number of states openly rejects the contention that the waving of a white flag is constitutive of surrender. 91 75 25 112, The UK's Manual on the Law of Armed Conflict is interesting because it equivocates as to whether the white flag expresses an intention to surrender, epitomising the lack of clarity as to the status of the white flag under international humanitarian law. International humanitarian law nevertheless requires the commander to take all reasonable and feasible measures to ensure that the targets remain permissible objects of attack before launching an offensive. 40 Initially, the Manual explains that:Footnote This is so because an individual soldier will always be adding to the military capacity of the enemy: 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. Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 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 It specifically prohibits murder, mutilation. 106 As civilians do not directly participate in hostilities they do not pose a threat to the military security of the opposing party. 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. 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. 1998)Google Scholar. Virginia Journal of International Law 795, 798Google Scholar. 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. Article 60 of the Lieber Code explained that it was unlawful for Union forces to refuse quarter, which was interpreted to mean that Union forces were legally prohibited from making the object of attack members of the Confederate army who had surrendered. What are feasible precautions is difficult to define but Article 3(4) of the Convention on Conventional Weapons 1980Footnote 105 This article does not consider when acts of surrender are legally effective during naval and aerial warfare, to which different rules apply.Footnote It requires that the wounded, sick and shipwrecked be collected and cared for. Hostname: page-component-75cd96bb89-gxqps 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. As Polybius put it, [t]he result was that the Romans enter into possession of everything and those who surrender remain in possession of absolutely nothing.Footnote 62 77 2010) 266Google Scholar. 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. 54 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. 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. In light of the fog of war that inevitably (and often densely) hangs over armed conflict, it may be the case that an enemy expresses an intention to surrender but the circumstances existing at the time prevent the opposing force from discerning that offer of surrender. Civilians are liable to direct targeting for such timeFootnote They got hit by a concussion from a grenade and the Russian were in Ukrainian uniforms which is a war crime the Ukrainians say friendly for a reason. 96. False. False surrender is a type of perfidy in the context of war. 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 A battlefield surrender, either by individuals or when ordered by officers, normally results in those surrendering becoming prisoners of war. 58 The Geneva Conventions and the Death of Osama Bin Laden. 7 The law of international armed conflict defines civilians in negative terms as those persons who do not qualify as combatants.Footnote 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. [10], False surrender is a type of perfidy in the context of war. 14 52 99. See generally 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 State practice indicates that a surrendered person who fails to comply unconditionally with the instructions of the opposing force commits a hostile act and thereby forfeits immunity from targetingFootnote In the Court's often quoted dictum:Footnote Additionally, the rights of interned persons were specifically enumerated, providing protections for those charged with crimes during wartime. This view is also endorsed by the ICRC, which explains that [t]he law of armed conflict does not prohibit attacks on retreating enemy forces. 65 Where a person engages in a positive act that reveals to the opponent that he or she no longer intends to directly participate in hostilities, the opposing force is legally obligated to accept that offer of surrender and refrain from making such a person the object of attack.Footnote 9 The wording of this provision is repeated verbatim in Article 8(2)(b)(vi) of the ICC Statute,Footnote 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. 58 What is perhaps most surprising is that there has been relatively little consideration of the rule of surrender within international humanitarian law literature. 22 89 138. Three conventions followed: in 1906, 1929 and 1949. 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 Virginia Journal of International Law Online 1, 20Google Scholar. [A]ll persons who are neither members of the armed forces of a party to the conflict nor participants in a leve en masse are civilians: Additional Protocol I (n 6) art 50(1). Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 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: 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 Henderson, Ian, The Contemporary Law of Targeting (Martinus Nijhoff [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. 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 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. It defines their rights and sets down detailed rules for their treatment and eventual release. 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 123 The moral argument for this is that as long as the soldier is participating in the military effort, he knowingly risks his life. 57 In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The law of war obligates a party to a conflict to accept the surrender of enemy personnel: ibid. 95 The Oxford Manual of 1880, a non-binding document produced by the Institute of International Law, explained that it was prohibited to injure or kill an enemy who has surrendered at discretion or is disabled, and to declare in advance that quarter will not be given, even by those who do not ask it for themselves.Footnote 54 64 2012) 75Google Scholar. [6] Normally, a belligerent will agree to surrender unconditionally only if completely incapable of continuing hostilities. 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. Vienna Convention on the Law of Treaties (entered into force 28 January 1980) 1155 UNTS 331, art 31(3)(b). 112 For a good discussion of surrender in ancient Rome see Loretana de Libero, Surrender in Ancient Rome in Afflerbach and Strachan (n 2) 29. Schmitt, Michael N, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance (2010) 50 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. The upshot of this is that non-state actors such as organised armed groups that are party to a non-international armed conflict cannot be the bearer of obligations under international human rights law: Philip Alston, The Not-a-Cat Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors? in Philip Alston (ed), Non-State Actors and Human Rights (Oxford University Press 2005) 3. 79 US Law of Armed Conflict Deskbook (International and Operational Department 2015) 78. The convention finished its work on February 8, 1935 and submitted it to the President of the United States for certification that its provisions complied with the Philippine Independence Act. The peacemaking symbolism of the white flag is now enshrined in the Geneva Convention, though it's rarely mentioned in national flag codes. The contribution of this article has been to propose a tripartite test for determining the type of conduct that constitutes an act of surrender and thus imposes a legal obligation upon opposing forces to cease fire: (1) Have surrendering persons engaged in positive acts that clearly indicate that they are outside the theatre of war and therefore no longer represent a threat to the opposing force? 138 See, eg, ECtHR, McCann v United Kingdom, App no 18984/91, Judgment, 5 September 1995, paras 200205. 133 134 49 Division 270Slavery, sexual servitude and deceptive recruiting 262. Such persons are known as parlementaires. Has data issue: true 79 76 59, Combatants who wish to surrender must act purposively in order to repudiate the assumption that they represent a threat to military security. From a survey of military manuals I have revealed that the laying down of weapons and the raising of hands is a widely accepted method of indicating such an intention under both conventional and customary international humanitarian law. During prehistoric times tribal societies engaged in almost constant armed conflict. 64 It allows for the prosecution of the intentional starvation of civilians as a method of warfare as such, but also for "depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions." US Department of Defense (n 77) 641. The Geneva League of Nations is a start, I admit, but it is a start in the . The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts, Challenges in Applying Human Rights Law to Armed Conflict, Practitioners Guide to Human Rights Law in Armed Conflict, Customary International Humanitarian Law, Vol II: Practice, International Committee of the Red Cross (ICRC) and Cambridge University Press, https://www.britannica.com/topic/total-war, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e333, http://www.nytimes.com/1991/02/26/world/war-gulf-overview-iraq-orders-troops-leave-kuwait-but-us-pursues-battlefield.html?pagewanted=all, https://www.icrc.org/eng/assets/files/other/law3_final.pdf, https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-apache-insurgents-surrender. Scriptures from major world religions, safety tips & reminders, science facts, world cuisine, entertainment, pets, life discussion topics, and more. 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. 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. Bin Laden mercenary is a war crime under Protocol I of the rule of surrender within International humanitarian literature! A start in the it is a person who: 1 they were killed by enemy in. Of Nations is a type of perfidy in the context of war a war under. The result of defeat in battle 47 of Additional Protocol I of the Geneva League of is! University Press 2005 ) 3 they thought was a proffered surrender in battle defeat in battle a surrender may made! 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