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. 133 The code of chivalry did not govern the relations between knights and common warriors; knights, therefore, were not subject to any legal obligation to accept offers of surrender from regular combatants during times of hostilities: the desperate situation of the common warriors must be stressed because it warns us against overstating the so-called rules of war, which had begun to develop a certain code of human behaviour among noble warriors since the Middle Ages.Footnote 111 No clear rule exists as to what constitutes surrender. Holger Afflerbach and Hew Strachan, A True Chameleon? 10, A similar story can be told in relation to the regulation of armed conflict, and thus the regulation of surrender during ancient times. 116 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. In ancient Greece Greek religious beliefs did not give rise to ethical or humanitarian limitations on the conduct of warfare.Footnote 75 62 97 For combatants in international armed conflicts, international humanitarian law is generally considered to constitute the lex specialis in relation to the amount of force to be used against enemy combatants: UN Human Rights, Office of the High Commissioner, International Legal Protection of Human Rights in Armed Conflict (United Nations 2011) 67. 196 countries have ratified them, no other international treaty has . 9 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. Summary. It is a war crime under Protocol I of the Geneva Convention. Moreover, one would expect to find the answers to these questions in the military manuals that states produce in order to guide the conduct of their armed forces during times of armed conflict and to streamline their conduct in conformity with international humanitarian law. Total War, Encyclopedia Britannica Online, 2015, https://www.britannica.com/topic/total-war. 38 Law and History Review 469, 47677CrossRefGoogle Scholar. 73 See, eg, ECtHR, McCann v United Kingdom, App no 18984/91, Judgment, 5 September 1995, paras 200205. 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 Murray, Daragh and others, Practitioners Guide to Human Rights Law in Armed Conflict (Oxford University Press (footnotes omitted). Two additional protocols to the 1949 agreement were approved in 1977. 59, Combatants who wish to surrender must act purposively in order to repudiate the assumption that they represent a threat to military security. 25 125 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. Virginia Journal of International Law 795, 798Google Scholar. 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. 5 which indicates in an absolutely clear mannerFootnote 79 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. The Manual then proceeds to explain that [e]verything depends on the circumstances and conditions of the particular case. 91 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 The article is structured as follows. International Review of the Red Cross 881, 889CrossRefGoogle Scholar. When is Surrender Effective under International Humanitarian Law? 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 describes them as those precautions which are practicable and practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations. These conflicts were usually fought without mercy because the initiation of armed conflict was regarded as triggering total war, a concept that described military conflict in which contenders [were] willing to make any sacrifice in lives and other resources to obtain a complete victory.Footnote 15 Thus, persons who refuse to obey demands to kneel or to lie on the ground, place their hands behind their back, remain silent, stand still and so on, do not submit to the authority of their opponent and do not surrender for the purpose of international humanitarian law. Have persons who are surrendering unconditionally submitted to the authority of their captor? The development of the Geneva Conventions was closely associated with the Red Cross, whose founder, Henri Dunant, initiated international negotiations . Certainly, a captor cannot demand captives to act incompatibly with international humanitarian law (such as ordering them to shoot civilians or instructing them to act in a way that is in contravention of their legal rights as prisoners of war) and, if these demands are not complied with, determine that they have engaged in a hostile act and can be thus made the object of attack. Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 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? It is a war crime under Protocol I of the Geneva Convention. The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation. The US Law of Armed Conflict Deskbook also rejects the use of the white flag as being declarative of surrender, and discusses the use of the white flag in the context of the 1982 Falklands Conflict:Footnote The logs revealed that during the Second Gulf War a US Apache helicopter engaged a truck containing two Iraqi insurgents. Journal of National Security and Policy 379, 387Google Scholar. the consequence would be that where a situation is under the control of a stateFootnote 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. [A] soldier who fights to the very last possible moment assumes certain risks. The Geneva Conventions are a series of treaties on the treatment of civilians, prisoners of war (POWs) and soldiers who are otherwise rendered hors de combat (French, literally "outside the fight"), or incapable of fighting. principle and became a license for mischief.Footnote 104 Leiden Journal of International Law 315, 343CrossRefGoogle Scholar. Disapproval of perfidy was part of the customary laws of war long before the prohibition of perfidy was included in Protocol I. Gleb Garanich/Reuters. 18 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 Additional Protocol I (n 6) art 57(1). 46 Such conduct is known as perfidy. 2009) 8687 The findings at Nuremberg led directly to the United Nations Genocide Convention (1948) and Universal Declaration of Human Rights (1948), as well as the Geneva Convention on the Laws and Customs . Such environments were generally lawless, meaning that the decision to offer surrender was a risky and dangerous option for combatants to take.Footnote 29 Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 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. 3. 51 O'Connell (n 19) para 109. This rather simplifies the picture because there is evidence that the Romans formulated rudimentary laws of war, such as the prohibition against the use of concealed, barbed and poisoned weapons and the prohibition against attacking religious figures.Footnote 87 It is recognized by military professionals that a retreating force remains dangerous. 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. Commenting upon the incident, Roberts correctly notes that while [s]urrender is not always a simple matter, the legal advice of the US military lawyer that ground forces cannot surrender to aircraft, and thus offers of surrender in such circumstances can be permissibly refused was dogmatic and wrong.Footnote 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 Lanni, Adriaan, The Laws of War in Ancient Greece (2008) 26 Many bands took no prisoners, not even children or young women. Does the act of retreat amount to conduct that signals an intention to surrender under either treaty or customary international law? 71 Accordingly, I propose a three-stage test for determining when an act of surrender is legally effective under international humanitarian law: 1. An interesting incident came to light in October 2010 as a result of classified US military logs being published by the whistle-blower website Wikileaks.Footnote Both Additional Protocols to the 1949 Geneva ConventionsFootnote The US Law of War Manual reiterates this view: Enemy combatants remain liable to attack when retreating. 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. 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. 89 70 118 1981) 50910Google Scholar. They were killed by enemy fire in a disputed incident. 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: Yet, the threat they represent can be repudiated, and thus immunity from direct targeting acquired, where they perform a positive act indicating they no longer intend to participate in hostilities that is, they surrender. It is prohibited to make improper use of the distinctive emblem of the red cross, red crescent or red lion and sun or of other emblems, signs or signals provided for by the Conventions or by this Protocol. 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. The moral argument for this is that as long as the soldier is participating in the military effort, he knowingly risks his life. For a discussion of the legal framework relating to parlementaires see impose an obligation upon state parties to refrain from making the object of attack a person who has expressed an intention to surrender. 31 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. Initially, the Manual explains that:Footnote 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. Carnahan, Burrus M, Lincoln, Lieber and the Laws of War (1998) 92 The obligation to accept offers of surrender and to refrain from directly targeting persons who have surrendered is justified on the basis that there is no military necessity to target those who no longer intend to participate in hostilities, and that such conduct represents an unacceptable affront to human dignity. 107 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 During the First Gulf War, US tanks equipped with earthmoving plough blades breached Iraqi defences and then turned and filled in trenches, entombing Iraqi soldiers who had sought to surrender. 12 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 During times of international armed conflict state practice is fairly uniformFootnote 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 Other states similarly reject the contention that the white flag indicates an intention to surrender. 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 . 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. Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol II: Practice (International Committee of the Red Cross (ICRC) and Cambridge University Press 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. ICRC Study (n 6) r 47. Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). 77 This article does not consider when acts of surrender are legally effective during naval and aerial warfare, to which different rules apply.Footnote Close this message to accept cookies or find out how to manage your cookie settings. This later resulted in a U.S. congressional charter, officially recognizing Red Cross services. During the Battle for Goose Green, some Argentinean soldiers raised a white flag. regardless of how hopelessly outgunned and vanquished they may be.Footnote 60. 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. 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). it is a war crime to make the object of attack persons who have surrendered. Robertson, Horace, The Obligation to Accept Surrender (1995) 68 (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? 100. 44 State practice points towards a broad reading of the notion of what is a hostile act. 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. 9 [7] 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. That it is only those members of an organised armed group possessing a continuous combat function to directly participate in hostilities who are to be regarded as combatants derives from the ICRC's Interpretive Guidance, ibid 25. 69 They shall in all circumstances be treated humanely, without any adverse distinction. The picture is more complex in relation to the white flag. Note that the focus of the article is upon the rule of surrender during land warfare in the context of international and non-international armed conflict. 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 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 138 Few will . Indeed, there is support for this approach in a number of military manuals. 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 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. 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