Such environments were generally lawless, meaning that the decision to offer surrender was a risky and dangerous option for combatants to take.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 64 It specifically prohibits murder, mutilation. Luban, David, Military Necessity and the Culture of Military Law (2013) 26 (Same book as CIVIC, Saint Nicholas Bible, Queen Elizabeth Bible except King James Epiphany only has Jewish & Christian Total War, Encyclopedia Britannica Online, 2015, https://www.britannica.com/topic/total-war. [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. Rome Statute establishing the International Criminal Court (entered into force 3 September 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(vi). 103 130 8 Additional Protocol I (n 6) art 51(3). 2 The document has no provisions for punishment, but violations can bring moral outrage and lead to trade sanctions or other kinds of economic reprisals against the offending government. [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. 99 Retreat is not the same as surrender. 36 2016) 4951 [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. 18 122 One of the treaties created during the 1949 Convention, this defined "Prisoner of War,"and accorded such prisoners proper and humane treatment as specified by the first Convention. August 4, 2011 04:00:00 pm. See, eg, Human Rights Committee, Suarez de Guerrero (n 82). We use cookies to distinguish you from other users and to provide you with a better experience on our websites. which indicates in an absolutely clear mannerFootnote The Geneva Conventions providefor universal jurisdiction, as opposed to a more traditional (and limited) territorial jurisdictionthat was designed torespect thesovereignty of States over their citizens. 51 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. No killing civilians. 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). 77 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 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. Edited by: . Although formally the purpose of art 4A is to delineate the criteria for determining who can be regarded as prisoners of war under the law of international armed conflict, it has become well accepted that this provision also provides the criteria for determining lawful combatancy during international armed conflict: 20 Close this message to accept cookies or find out how to manage your cookie settings. Finally, it discusses how occupiers are to treat an occupied populace. Thus, rather than imposing restraint, military necessity acted as a permissiveFootnote 121 88 Statute of the International Court of Justice (n 41) art 38(1)(b). 57 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 issue is that ground forces in such circumstances need to surrender in ways that are clear and unequivocal.Footnote ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. Ms Evans is wrong to claim that, under the Geneva Convention, refugees should seek refuge in the first safe country they come to. Additional Protocol II (n 49) art 13(1). Hostname: page-component-75cd96bb89-gxqps In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of 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. 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 Armed conflict in ancient Greece was therefore largely unregulated and, in particular, the Greek code of honor offered no protection to surrendering soldiers.Footnote The ICRC, for example, expressly considers and then rejects this contention: Melzer (n 57) 70. For information on immigration and links to the 1951 Conventionand 1967 Protocol Relating to the Status of Refugees, see the article aboutImmigration. principle and became a license for mischief.Footnote 104 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 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. Geneva Conventions, Series of four international agreements (1864, 1906, 1929, 1949) signed in Geneva, Switz., that established the humanitarian principles by which the signatory countries are to treat an enemy's military and civilian nationals in wartime.The first convention was initiated by Jean-Henri Dunant; it established that medical facilities were not to be war targets, that hospitals . Feature Flags: { 119 Its full respect is required. 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). 62 Article 3 of the Geneva Conventions covered, for the first time, situations of non-international armed conflicts. For example, is the waving of a white flag indicative of surrender? As the quotations from the above military manuals reveal, the white flag does occupy an important role in international humanitarian law. 12 The US explains that [s]urrender may be made by any means that communicates the intent to give up. 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 80 Indeed, there is support for this approach in a number of military manuals. 130 Seven new ratifications since 2000 have brought the total number of States Party to 194, making the Geneva Conventions universally applicable. 101 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. Roberts further notes that [t]he issue is not that ground forces simply cannot surrender to aircraft. [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. 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. Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 261. The 1st Marine Division and its 4,000 attached U.S. Army forces and British Royal Marines, in the famous 1950 march out of the Chosin Reservoir in North Korea, fighting outnumbered by a 4:1 margin, turned its retreat into a battle in which it defeated the 20th and 26th Chinese Armies trying to annihilate it. J. Cadoux/ICRC Archives. Sandoz, Swinarski and Zimmermann (n 1) 487. The law of war, as applied by the United States, gives no revolving door protection; that is, the off-and-on protection in a case where a civilian repeatedly forfeits and regains his or her protection from being made the object of attack depending on whether or not the person is taking a direct part in hostilities at that exact time: US Department of Defense, Law of War Manual (2015, updated 2016) para 5.8.4.2. Where persons clearly indicate that they no longer intend to participate in hostilities, they no longer represent a threat to military security and thus there is no military necessity to target them.Footnote 78, International human rights law may muddy the waters here. 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. Section 4 provides some conclusions. The Laws of War on Land, 9 September 1880 (the Oxford Manual), art 9(b). False surrender is a type of perfidy in the context of war. In essence, then, whether the discarding of weapons (where a person is in possession of weapons) and placing hands above the head or waving a white flag constitute an effective method of expressing an intention to surrender boils down to whether such conduct is supported by state practice. 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. 135 61 According to Article 47 of Additional Protocol I of the Geneva convention a mercenary is a person who: 1. It was certified on March 25, 1935 and it was subsequently ratified by the Filipino people in a plebiscite on May 14, 1935. Traditionally, a surrender ceremony was accompanied by the honors of war. 53 If the approach described above gains traction within state practice (as it has done within academic literature),Footnote Neither treaty law, including the relevant commentaries, nor military manuals indicate that retreat is indicative of surrender. 111 of international humanitarian law because it is the [principal] device for containing destruction and death in our culture of war.Footnote This is the requirement of Additional Protocol I (n 6) art 57(2)(a)(i), which explains that those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and not subject to special protections but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them. Furthermore, the Rome Statute establishing the International Criminal Court (ICC Statute) determines that in times of internationalFootnote 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 picture is more complex in relation to the white flag. 80 63 95 65 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. 38 Canada, Code of Conduct for CF Personnel (Office of the Judge Advocate General 2001) r 5 para 3. The Manual then proceeds to explain that [e]verything depends on the circumstances and conditions of the particular case. 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. Henderson (n 55) 88 fn 64. If they did take prisoners it was only young women or some women and children. 70 They organized a provisional govern- ment for service until a permanent one might be established by the people. 38 117. Report on UK Practice, 1997, Notes of a Meeting with a Former Director of Army Legal Services, 19 June 1997, Ch 2.1, cited in Marginal note: Protocols approved (2) The Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts, and . This being said, under international humanitarian law persons are regarded as hors de combat and thus immune from attack where they are in the power of the adverse party: Additional Protocol I (n 6) art 41(2)(a); ICRC Study (n 6) r 47. 139 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. 116 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 . 126 94 The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? The Rule of Surrender in International Humanitarian Senior Lecturer in International Law, University of Sheffield, United Kingdom. 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 . The First Geneva Convention was presided over by Swiss general Guillaume Henri Dufour on August 22, 1864. 30 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. 2. 43 The various meanings of the flag were later codified in the Hague and Geneva Conventions of the 19th and 20th centuries. See also Hague Regulations IV (n 48) art 23(c): It is forbidden [t]o kill or wound an enemy who has surrendered at discretion. False surrender is a type of perfidy in the context of war. For the purpose of targeting, and in order to maintain the principle of distinction during non-international armed conflict, the law of such conflict distinguishes between, on the one hand, armed forces and armed groups (who are often referred to collectively as fightersFootnote 7 If Lewis's claim is false, however, the claim itself is dangerous. (underscore in the original). This article is concerned with exploring the legal status and content of the rule of surrender and this section traces the emergence of this rule within conventional and customary international humanitarian law during international and non-international armed conflict, as well as identifying its theoretical basis. 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 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. Instead, states regard insurgents as criminals and terrorists who must be held criminally responsible for their violent and seditious conduct. 75 83 The act of surrender possesses a political, military and legal dimension. 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 No Colony Drops. On rare occasions the demands of military necessity converge with humanitarian considerations and prompt the law in the same direction.Footnote 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. (2) Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? 132 and that [t]he hoisting of a white flag has no other legal meaning in the law of war.Footnote 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. This convention produced a treaty designed to protect wounded and sick soldiers during wartime. Some Concluding Remarks on the History of Surrender in Afflerbach and Strachan (n 2) 435, 442. ICRC Study (n 6) 168. 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. 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 original Geneva Convention was adopted in 1864 to establish the red cross emblem signifying neutral status and protection of medical services and volunteers. The article is structured as follows. US Law of War Manual (n 68) para 5.9.3.2. 110 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. For a good discussion of surrender in ancient Rome see Loretana de Libero, Surrender in Ancient Rome in Afflerbach and Strachan (n 2) 29. 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. 83 71 125 Such persons are known as parlementaires. 9 Civilians enjoy protection from direct targeting under international humanitarian law but can be made the object of attack during such time as they directly participate in hostilities.Footnote Those same treaties also forbid armies from using the white flag to fake. 9 Division 270Slavery, sexual servitude and deceptive recruiting 262. 79 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 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. Has data issue: true Additional Protocol I Article 10 of the 1977 Additional Protocol I provides: 1. 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 As such, the active hostilities framework [i.e. 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. The convention prohibits torture, assaults upon personal dignity, and execution without judgment. 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. 132 26 [8] US Army policy, for example, requires that surrendered persons should be secured and safeguarded while being evacuated from the battlefield. Further, additional regulations regarding the treatment of civilians were introduced. 5 When a soldier surrenders, the army that takes. 54 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. 22 (3) Have the persons surrendering unconditionally submitted themselves to the authority of their captor? Types vary greatly andinclude traditional civil wars or internal armed conflicts that spill over into other States, as well as internal conflicts in which third-party States or multinational forces intervene alongside the government. Prisoners of War are supposed to be protected and provisioned for. False or misleading statements in applications 143. 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. 45 Other states similarly reject the contention that the white flag indicates an intention to surrender. 21 February 2018. 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. 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 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. If the rationale underlying the rule of surrender is that there is no military necessity to attack persons who have expressed the intention to no longer directly participate in hostilities, then it follows that it is only those persons who directly participate in hostilities who possess the legal capacity to surrender under international humanitarian law. ) and, on the other hand, civilians.Footnote This agreement extended the protections described in the first Convention to shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships. 77 30 International Review of the Red Cross 3CrossRefGoogle Scholar. 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? 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. First, this code of chivalry applied only to interactions between recognised knights. With civilians bearing the brunt of many protracted conflicts, scholars and aid agencies have raised questions about the continued relevance of IHL. 76 3 They shall in all circumstances be treated humanely, without any adverse distinction. Geneva Conventions, a series of international treaties concluded in Geneva between 1864 and 1949 for the purpose of ameliorating the effects of war on soldiers and civilians. More specifically, questions arise as to the type of conduct that signals an intention to surrender. Many bands took no prisoners, not even children or young women. British officer shocked by treatment of prisoners as 'oriental cattle' Owen Bowcott @ owenbowcott Thu 2 Jan 2003 20.58 EST US troops guarding communist captives in the Korean War violated the. An especially important principle that emerged during this period was that of military necessity. 97 112 US Law of Armed Conflict Deskbook (International and Operational Department 2015) 78. In 1949, after World War II, two new Conventions were added, and the Geneva Conventions entered into force on 21 October 1950. The Geneva Convention is a standard by which prisoners and civilians should be treated during a time of war. Civilians are liable to direct targeting for such timeFootnote Ratification grew steadily through the decades: 74 States ratified the Conventions during the 1950s, 48 States did so during the 1960s, 20 States signed on during the 1970s, and another 20 States did so during the 1980s. 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 It requires that the wounded, sick and shipwrecked be collected and cared for. Additional Protocol I (n 6) art 50(1); ICRC Study (n 6) r 6. 12 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. I provides: 1 signals an intention to surrender and Geneva Conventions 261 the Red Cross 3CrossRefGoogle Scholar Scholar. Conditions of the 19th and 20th centuries US Law of war later codified in the context of Manual. Over by Swiss General Guillaume Henri Dufour on August 22, 1864 it reasonable in the circumstances for first! Offer of surrender treaty designed to protect wounded and sick soldiers during wartime surrender ceremony was accompanied the! 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