within the international society and coupled with opinio juris (the belief that the practice is required by international law), such customary practices give rise to international legal obligations.Footnote Or life-sustaining stars . ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. 2 False surrender is basically the "CALL THE AMBULANCE BUT NOT FOR ME" meme. The resulting agreement was signed by 12 nations, all European, and consisted of four . [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. The first Convention was initiated by what is now the International Committee for the Red Cross and Red Crescent (ICRC). Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). 120 Prisoners of War are supposed to be protected and provisioned for. 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. Lanni, Adriaan, The Laws of War in Ancient Greece (2008) 26 An especially important principle that emerged during this period was that of military necessity. 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. State practice (coupled with opinio juris) is also key to interpreting obligations imposed by customary international law.Footnote At the level of small units, for example, once an objective has been seized, an attacking force is trained to fire on the retreating enemy to discourage or prevent a counterattack.Footnote Last updated in June of 2017 by Stephanie Jurkowski. See generally 96. 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. The US Corporate government seeks to roll over its payments past the deadline. Moving forward, the next question that needs to be addressed is the nature of the positive act that persons must exhibit in order to reveal an intention that they no longer intend to directly participate in hostilities. The article is structured as follows. Robertson (n 3) 547. The law of war obligates a party to a conflict to accept the surrender of enemy personnel: ibid. 49 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. 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]. Schedule 1 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949. 38 116 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. 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 . CrossRefGoogle Scholar. 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. 64 To that end, the Convention prohibits torture, assaults upon personal dignity, and execution without judgment(Article 3). 1985) 6Google Scholar. GC III (n 50) art 4A. It is therefore concerning that a number of military manuals erroneously identify the white flag as a sign of surrender under international humanitarian law. 8 which, in the context of armed conflict, would be international humanitarian law. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. In lay terms many are likely to regard the waving of the white flag as a widely recognised method of indicating a desire to surrender. 3. It also identified new protections and rights of civilian populations. 33 Further, additional regulations regarding the treatment of civilians were introduced. 107 57 84. 5 82 88 Also, must all offers of surrender be accepted or are there circumstances in which an offer of surrender may permissibly be refused? Civilians are liable to direct targeting for such timeFootnote Roberts further notes that [t]he issue is not that ground forces simply cannot surrender to aircraft. 137 32 Tieya, Wang and Min, Wei, International Law (Falu Chubanshe Such environments were generally lawless, meaning that the decision to offer surrender was a risky and dangerous option for combatants to take.Footnote It is a war crime under Protocol I of the Geneva Convention. Murray, Daragh and others, Practitioners Guide to Human Rights Law in Armed Conflict (Oxford University Press Second, this code of conduct (and so the legal obligation to accept surrender) applied only between knights who were within Christendom: the code [of chivalry] was intended to apply only to hostilities between Christian princes and was seldom applied outside that context, for example, in the Crusades.Footnote 56 Rome Statute establishing the International Criminal Court (entered into force 3 September 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(vi). 36 Combatants also include those members of irregular armed forces (such as militias and volunteer corps)Footnote International Review of the Red Cross 599, 606CrossRefGoogle Scholar. Section 3 explores state practice with a view to identifying when an offer of surrender is effective under international humanitarian law, and proposes a three-stage test that can be used to determine whether an enemy has extended a valid offer of surrender. 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 121 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 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. Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press These exceptions notwithstanding, the rules contained in the code of chivalry undoubtedly had a civilizing effect and were a valuable humanitarian development.Footnote for this article. 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 118 Holger Afflerbach and Hew Strachan, A True Chameleon? A consensus was growing that, although war might still be a necessary element in international politics it should be waged, so far as possible, with humanity: Howard (n 24) 6. 87 Additional Protocol II (n 49) art 13(1). Mattox, John Mark, Saint Augustine and the Theory of Just War (Continuum Division 270Slavery, sexual servitude and deceptive recruiting 262. 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. 7 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. 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. 108 International Review of the Red Cross 881, 889CrossRefGoogle Scholar. The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. 78, International human rights law may muddy the waters here. A sovereign state may surrender following defeat in a war, usually by signing a peace treaty or capitulation agreement. The Apache helicopter opened fire on the insurgents, eventually killing them both. [10], False surrender is a type of perfidy in the context of war. 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. Neither treaty law, including the relevant commentaries, nor military manuals indicate that retreat is indicative of surrender. State practice points towards a broad reading of the notion of what is a hostile act. United Nations | International Residual Mechanism for Criminal Tribunals UN IRMCT. In its military context the act of surrender denotes that the person surrendering is no longer engaged in hostilities: that he or she is hors de combat.Footnote 41 They protect people who do not take part in the fighting (civilians, medics, aid workers) and those who can no longer fight (wounded, sick and shipwrecked troops, prisoners of war). These four treaties have been adopted by all 194 nations of the world. 01 Jan 2023 20:41:32 the consequence would be that where a situation is under the control of a stateFootnote 50. See generally 134 2 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 In turn, this will allow for the conditions that trigger the obligation to accept offers of surrender under international humanitarian law to be more easily discerned and better understood. Is retreat tantamount to surrender? A US report into the incident explained:Footnote 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). 94 No destroying inhabited planets. Marginal note: Conventions approved 2 (1) The Geneva Conventions for the Protection of War Victims, signed at Geneva on August 12, 1949 and set out in Schedules I to IV, are approved.. 5 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 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 45 Some Concluding Remarks on the History of Surrender in Afflerbach and Strachan (n 2) 435, 442. Ms Evans is wrong to claim that, under the Geneva Convention, refugees should seek refuge in the first safe country they come to. 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. 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. The Manual then proceeds to explain that [e]verything depends on the circumstances and conditions of the particular case. 95 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 . 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 In practice, it [the rule of surrender] is one of the most important rules of the Protocol [Additional Protocol I (n 6 below)]: 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: 2005) 975CrossRefGoogle Scholar. Unlike international armed conflicts, the law of non-international armed conflict does not expressly define the concept of civilian notwithstanding the fact that treaty law applicable to non-international armed conflict uses the term civilian on a number of occasions.Footnote The US military was criticised for this conduct.Footnote and non-international armed conflictFootnote For example, Canada's Code of Conduct states that [t]he showing of a white flag is not necessarily an expression of an intent to surrender.Footnote 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. 102 This incident emphasizes the rule that the white flag indicates merely a desire to negotiate, and its hoister has the burden to come forward. 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. The rule is based on common Article 3 of the Geneva Conventions, which prohibits "violence to life and person, in particular murder of all kinds" against persons placed hors de combat. 26 Additional Protocol I (n 6) art 57(1). 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. 139. J. Cadoux/ICRC Archives. Canada, Code of Conduct for CF Personnel (Office of the Judge Advocate General 2001) r 5 para 3. US Law of Armed Conflict Deskbook (n 60) 167. This being said, the regulation of armed conflict was skeletal and said very little about how surrendering forces had to be treated. Common Article 3 (n 50); Additional Protocol II (n 49) art 1. 66 69 Luban, David, Military Necessity and the Culture of Military Law (2013) 26 In the Armed Activities case the ICJ held that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration: Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), Judgment [2005] ICJ Rep 168, [216]. 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. Despite being signatory to the Conventions, there are some notable and often-criticized U.S. cases involving conduct that would otherwise be prohibited by the Conventions, such as Hamdi v. Rumsfield(2004). 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: It specifically prohibits murder, mutilation. In order to be in the power of an adverse party the person in question does not have to be physically apprehended by the opposing force. 81 For example, the concept of civilian is used in Additional Protocol II (n 49) arts 13 and 17. 16 Edited by: . 123 Section 5 The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Geneva Convention for the Relief of the Wounded and . 131 76 58 Paul Cartledge, Surrender in Ancient Greece in Afflerbach and Strachan (n 2) 15, 21. 109 Merriam-Webster defines "surrender" as "the action of yielding one's person or giving up the possession of something especially into the power of another", and traces the etymology to the Middle English surrendre, from French sur- or sus-, suz "under" + rendre "to give back";[1] this in turn is defined by the University of Michigan Middle English Dictionary as meaning "The giving up of an estate, a grant of land, or an interest in property to the person who holds the right to it", or, in law, "the relinquishing of letters patent to the king", or "the giving back or return of something". The question then becomes what degree of control over the situation is needed in order to invoke the application of international human rights law. Lubell (n 80) 750. 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 Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced. 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. ICRC Study (n 6) 168. For example, is the waving of a white flag indicative of surrender? 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 15 This has been consistently interpreted as imposing a treaty obligation upon parties to this Protocol to accept valid offers of surrender.Footnote The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the purpose of revising the Convention concluded at Geneva on July 27, 1929, relative to the Treatment of Prisoners of War, have agreed as follows: Part I. 41 61 The exception here is 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. Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 The High Contracting Parties undertake to respect 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. 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. Indeed, I know of no pre-European contact bands that took male adults alive: ibid 8. 95 12 Heavily influenced by the dictates of Christianity and especially the writings of the leading teachers in the Catholic Church, it was during the Medieval Ages that concerted attempts were made to construct a detailed regulatory framework to govern armed conflict and mitigate the horrors of war. 116 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. 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 [3] Normally, a surrender will involve the handing over of weapons; the commanding officer of a surrendering force symbolically offers his sword to the victorious commander. 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