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. 54 121 Although Article 42 relates to international armed conflicts, the rule it contains applies also to non-international armed conflicts on the basis of Common Article 3 of the four Geneva Conventions, which protects persons placed hors de combat by any cause. Given the importance of surrender to realising the humanitarian objective that underpins international humanitarian law, this legal framework must embrace a common vernacular that enables those embroiled in armed conflict to engage in conduct with the confidence that it is a recognised method of expressing an intention to surrender. ) and, on the other hand, civilians.Footnote 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. 7 92. 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. The development of the Geneva Conventions was closely associated with the Red Cross, whose founder, Henri Dunant, initiated international negotiations . The first Convention was initiated by what is now the International Committee for the Red Cross and Red Crescent (ICRC). This is the only meaning that the white flag possesses in the law of armed conflict The display of a white flag means only that one party is asked whether it will receive a communication from the other. Reply . 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 Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC See, eg, Human Rights Committee, Suarez de Guerrero (n 82). It is prohibited to kill, injure or capture an adversary by resort to perfidy. 2 4. "useRatesEcommerce": true These exceptions notwithstanding, the rules contained in the code of chivalry undoubtedly had a civilizing effect and were a valuable humanitarian development.Footnote Fighters include those persons who are formally incorporated into a state's armed forces via domestic law and those members of an organised armed group who belong to a state that is party to the armed conflict and who possess a continuous combat function.Footnote During times of international armed conflict state practice is fairly uniformFootnote 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. An especially important principle that emerged during this period was that of military necessity. Ruses of war are not prohibited. 117 principle and became a license for mischief.Footnote 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. 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. 78, International human rights law may muddy the waters here. 120 being groups who exhibit a sufficient degree of military organization and belong to a party to the conflictFootnote 77 58 Close this message to accept cookies or find out how to manage your cookie settings. 71 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. the consequence would be that where a situation is under the control of a stateFootnote 59 88 115 The logs revealed that during the Second Gulf War a US Apache helicopter engaged a truck containing two Iraqi insurgents. Feature Flags: { 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? 72 Any males of fighting age or the elderly that fell into band warriors power were simply killed. 128. At least for the purpose of these international legal rules, the laying down of weapons is an effective method through which to express an intention to 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. 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 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 More specifically, questions arise as to the type of conduct that signals an intention to surrender. Both Additional Protocols to the 1949 Geneva ConventionsFootnote United Kingdom, Joint Service Manual of the Law of Armed Conflict (2004) paras 10.510.5.1. The US explains that [s]urrender may be made by any means that communicates the intent to give up. 24 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. 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. 65 14 The law of international armed conflict defines civilians in negative terms as those persons who do not qualify as combatants.Footnote 3. 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. 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 Moreover, to target persons who have placed themselves outside the theatre of war constitutes an unacceptable and indefensible affront to human dignity and is incongruous with the principle of humanity.Footnote 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 23 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 It is therefore concerning that a number of military manuals erroneously identify the white flag as a sign of surrender under international humanitarian law. 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. 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. He was found not guilty by a US military tribunal of a crime by ordering his men into action in US uniforms. It is well established that feigning surrender in order to invite the confidence of an enemy is a perfidious act. As the law of non-international armed conflict in the context of targeting is currently unclear,Footnote Hostname: page-component-546b4f848f-fhndm It has a political dimension in the sense that an act of surrender indicates that a surrendering party has been defeated and the opposing force has been victorious. 89 1987) 480Google Scholar. GC III (n 50) art 4A. Copyright Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2018. If the approach described above gains traction within state practice (as it has done within academic literature),Footnote Process 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. International Review of the Red Cross 599, 606CrossRefGoogle Scholar. 9 and non-internationalFootnote 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. 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. 37, The view that surrendered forces should not be made the object of attack is supported by the principles of military necessity and humanity. The question then becomes what degree of control over the situation is needed in order to invoke the application of international human rights law. 68 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. 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. 41 Rome Statute establishing the International Criminal Court (entered into force 3 September 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(vi). 41 126 The Laws of War on Land, 9 September 1880 (the Oxford Manual), art 9(b). 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. Game descriptions. American Journal of International Law 213, 217CrossRefGoogle Scholar. When is Surrender Effective under International Humanitarian Law? Sandoz, Swinarski and Zimmermann (n 1) paras 162122. 9 Law and History Review 469, 47677CrossRefGoogle Scholar. Such conduct is known as perfidy. In its judgement, the tribunal noted that the case did not require that the tribunal make findings other than those of guilty or not guilty and so no safe conclusion could be drawn from the acquittal of all accused. Have persons who are surrendering unconditionally submitted to the authority of their captor? Surrender involves an offer by the surrendering party (a unit or an individual solider) and an ability to accept on the part of his opponent: US Department of Defense (n 77) 641. 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. 12 Virginia Journal of International Law 795, 798Google Scholar. Article 4 defines who is a 'prisoner of war' and identifies the persons entitled to the protection of the Third Convention. Such ruses are acts that are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite the confidence of an adversary with respect to protection under that law. 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. Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 See generally 109 The offer to surrender must be clear and unconditional: US Law of War Manual (n 68) para 5.9.3.2. The head of Mariupol's Police Patrol, he was among hundreds to surrender from the Russian siege of the Azovstal steel mill on the orders of the Ukrainian president a year ago and was close to death on the day he was exchanged for Russian . St Augustine's notion of just war implied that resort to war was subject to limitations and that the decision to declare war required justification.Footnote impose an obligation upon state parties to refrain from making the object of attack a person who has expressed an intention to surrender. [Slide 5] Then show the illustration of the three orange circles indicating dangerous forces. A US report into the incident explained:Footnote Combatants also include those members of irregular armed forces (such as militias and volunteer corps)Footnote Such limited state practice, of course, creates difficulties in attempting to define the contours of a rule of treaty and customary law. As Pictet explains, [i]n the earliest human societies, what we call the law of the jungle generally prevailed; the triumph of the strongest or most treacherous was followed by monstrous massacres and unspeakable atrocities. Doswald-Beck, Louise, The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? (2006) 88 [12], False surrender is a type of perfidy in the context of war. That civilians can be directly targeted in international armed conflicts where they directly participate in hostilities is expressly mentioned in art 51(3) Additional Protocol I (n 6) and is undoubtedly representative of customary international humanitarian law: HCJ 769/02 Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and Others ILDC 597 (IL 2006) [2006], para 35. 116 87 During the Age of Enlightenment and under the tutelage of European philosophers, the principle of humanity emerged as a counterweight to the principle of military necessity.Footnote More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [106]. as they directly participate in hostilities, and this includes the period during which the civilian is preparing to engage in conduct amounting to direct participation, actually engages in hostilities, and in the immediate aftermath of the hostile act being perpetrated.Footnote The article is structured as follows. 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 Cte d'Ivoire, Droit de la guerre, Manuel d'instruction, Ministre de la Dfense, Forces Armes Nationales (2007) 4647. US Law of Armed Conflict Deskbook (n 60) 167. Both Additional Protocols to the 1949 Geneva Conventions Footnote 49 impose an obligation upon state parties to refrain from making the object of attack a person who has expressed an intention to surrender. 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? 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. There is one instance where a party to an armed conflict is legally required to offer opposing forces the opportunity to surrender before direct targeting can commence. The Begun Center had provided evaluation services for the FSS program and been onsite at over . 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. 17. The ICRC Study is not a source of international law but instead intends to capture and delineate customary rules of international humanitarian law applicable to international and non-international armed conflict: ibid xxiv. The status and function of the white flag is clearly an area that requires urgent clarification by states and the international community as a whole, and this article has sought to catalyse this process and contribute to it.Footnote Attacking persons who are recognized as hors de combat is prohibited. 1 53 57 15 During the trial, a number of arguments were advanced to substantiate this position and that the German and US militaries seem to be in agreement on it. Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? [7] The tribunal also emphasized the difference between using enemy uniforms in espionage versus combat.[8]. Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 The notion of fighters also includes those members of an organised armed group that is party to a non-international armed conflict and who possess a continuous combat function.Footnote 5 However, most agree surrender means ceasing resistance and placing oneself at the captor's discretion: US Law of Armed Conflict Deskbook (n 60) 138. 84. It is also prohibited to misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property. Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press In those instances where civilians do directly participate in hostilities they emerge as a threat to the opposing force and thus the notion of military necessity justifies their direct targeting.Footnote There were, however, three notable exceptions to this rule. Other commentators disagree with the ICRC's approach and argue that all members of the military component may be treated as members of an organized armed group for targeting purposes regardless of the function they perform: However, the phraseology of these agreements means that civilians necessarily fall into a residual category of anyone who is not a fighter. soldiers wanted to surrender, negotiate or what? Continuous combat function requires lasting integration into the irregular group, which encompasses those individuals who have directly participated in hostilities on repeated occasions in support of an organized armed group in circumstances indicating that their conduct reflects a continuous combat role rather than a spontaneous or sporadic or temporary role assumed for the duration of a particular operation.Footnote The Convention adopted in 1949 takes account of the experiences of World War II. The Geneva Convention prohibits: "the feigning of an intent to negotiate under flag of truce, or of a surrender; feigning of an incapacitation by wounds or sickness; the feigning of civilian, non-combatant status; and the feigning of protected status, by the use of signs, emblems or uniforms of the United Nations or of neutral, or other . Ask the participants if they can tell you what they mean in the law of armed conflict. regardless of how hopelessly outgunned and vanquished they may be.Footnote Roman forces did not therefore regard themselves as being subject to a legal obligation to accept offers of surrender.Footnote 1981) 50910Google Scholar. 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 The Lieber Code is often regarded as providing the foundation for subsequent attempts to regulate warfare. 2. Hors de combat is a French phrase commonly used in international humanitarian law to mean out of combat. 72 116 The First Geneva Convention protects soldiers who are hors de combat (out of the battle). 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. 2012) 75Google Scholar. 136 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. 74 Additional Protocol I (n 6); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II). Vienna Convention on the Law of Treaties (entered into force 28 January 1980) 1155 UNTS 331, art 31(3)(b). [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). [6], 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. 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 for this article. 3 Pictet, Jean, Development and Principles of International Humanitarian Law (Martinus Nijhoff Once forgotten, this move can't be remembered. By way of illustration, during the Falklands Conflict the Director of the United Kingdom (UK) Army Legal Services stated that where enemy combatants had surrendered but UK armed forces continued to come under fire from other enemy combatants, UK forces were entitled to remain in their positions and demand that surrendered persons advance forward. In the air, it is generally accepted that a crew wishing to indicate their intention to cease combat, should do so by waggling the wings while opening the cockpit: Sandoz, Swinarski and Zimmermann (n 1) 487. 24 At first the principle of humanity was used more generally to re-orientate the jurisprudential basis of European societies away from notions of divine right and religious privilege towards the values of equality, tolerance and justice. 34 81 [3] 48 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. Few will . Professor Sir Adam Roberts, quoted in Leigh (n 123). 2. This attack never misses. 112 117. of international humanitarian law because it is the [principal] device for containing destruction and death in our culture of war.Footnote [T]ribal and pre-state societies seldom [took] prisoners and usually [did] not accept surrender: Lawrence H Keely, Surrender and Prisoners in Prehistoric and Tribal Societies in Afflerbach and Strachan (n 2) 7, 7. US Department of Defense (n 77) 641. 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 The act of surrender, therefore, is a continuing obligation insofar as the persons surrendering must continually comply with the demands of their captor. 97 in other words, surrendered persons must place themselves at the captor's discretion.Footnote 75 37 progression include the Hague Convention of 1907 and the better-known Geneva Conventions of 1949. Published online by Cambridge University Press: 91 115, One final question remains. 5 36 members of the Irish Republican Army ambushed a truck carrying 18 Auxiliary Division officers. 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