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: 2013) 1Google Scholar, para 109. 131 United Nations | International Residual Mechanism for Criminal Tribunals UN IRMCT. Looking for Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales)? 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. Put differently, there is a pressing military need to target them directly. Common Article 3 functions like a mini-Convention within the larger GenevaConvention itself, and establishes fundamental rules from which no derogation is permitted, containing the essential rules of the Geneva Convention in a condensed format, and making them applicable to non-international conflicts. Article 23 of both the Hague Conventions II (1899)Footnote 80 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 92. However, where persons parachute from an aircraft and are not in distress, or are in distress but nevertheless engage in a hostile act, a threat to military security is present and they may be made the object of attack. 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 96. As in ancient Greece, combatants who sought to surrender during armed conflict in ancient Rome were in an extremely precarious position and their fate was entirely at the discretion of the opposing force: the offer of surrender could permissibly be refused and combatants slain. 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. First, the article situates surrender within its broader historical and theoretical setting, tracing its legal development as a rule of conventional and customary international humanitarian law and arguing that its crystallisation as a law of war derives from the lack of military necessity to directly target persons who have placed themselves outside the theatre of armed conflict, and that such conduct is unacceptable from a humanitarian perspective. Copyright Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2018. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. 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. 43 Tieya, Wang and Min, Wei, International Law (Falu Chubanshe It is recognized by military professionals that a retreating force remains dangerous. Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. indeed, surrender is 'one of the most important rules' 1 of international humanitarian law because it is the ' [principal] device for containing destruction and death in our culture of war'. The act of surrender possesses a political, military and legal dimension. explains that it is prohibited [t]o kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion. 50. 126 1 It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including inter alia the designation and acceptance of those Powers, in accordance with the following paragraphs. On rare occasions the demands of military necessity converge with humanitarian considerations and prompt the law in the same direction.Footnote Similarly, the Dominican Republic's Military Manual accepts that once a white flag is waved this signals an intent to surrender and the opposing force must cease firing from that moment: The enemy soldier may reach a point where he would rather surrender than fight. 51 Perhaps the thorniest issue is what positive act (or acts) are recognised by international humanitarian law as expressing an intention to surrender. 2014) 187, 188Google Scholar. [A] soldier who fights to the very last possible moment assumes certain risks. 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. The Fourth Geneva Convention of 1949 extends the protection of civilians and prisoners of war during military occupation, even in the case . His opponent either may not see his surrender, may not recognize his actions as an attempt to surrender in the heat and confusion of battle, or may find it difficult (if not impossible) to halt an onrushing assault to accept a soldier's last minute effort to surrender. In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. 18 90, In normative terms, commentators have increasingly argued that whenever a state has enough control over a particular situation to enable it to detain individuals, then such an attempt must be made before force can be used, and non-lethal force must be favoured if possible.Footnote 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 In the context of an international armed conflict, Article 40 of Additional Protocol I explains that it is prohibited to order that there shall be no survivors. 48 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 No destroying inhabited planets. 29 False surrender is a type of perfidy in the context of war. 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. More specifically, questions arise as to the type of conduct that signals an intention to surrender. Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. Nevertheless, available state practice, in conjunction with the wider theoretical context within which the rule of surrender operates, can be used to make general inferences and to draw tentative conclusions as to the meaning of this rule under international humanitarian law. The Rule of Surrender in International Humanitarian Senior Lecturer in International Law, University of Sheffield, United Kingdom. 88 133 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 An especially important principle that emerged during this period was that of military necessity. [11] This prohibition is repeated in Additional Protocol II, which adds that "it is prohibited to order that there shall be no survivors". More often than not, however, the principles of military necessity and humanity run into conflict, prompting the law in opposite directions. Although this literature routinely identifies the rule of surrender as being part and parcel of modern international humanitarian law and indeed emphasises the importance of this rule within this legal framework, existing literature fails to drill down into this rule and reveal the conditions precedent for an act of surrender to be legally effective.Footnote Persons who attempt to escape or commit a hostile act which means that they fail to submit to the authority of their opponent indicate that they are resuming participation in hostilities. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits [2001] ICJ Rep 40, [205]. It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through"special agreements.". 34 On August 12th, 2016, the Geneva Conventions--which place limits on how war is waged and form the cornerstone of international humanitarian law (IHL)--turn 67. It was certified on March 25, 1935 and it was subsequently ratified by the Filipino people in a plebiscite on May 14, 1935. The Geneva Conventions are a series of treatieson 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. As civilians do not directly participate in hostilities they do not pose a threat to the military security of the opposing party. 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 False surrender is a type of perfidy in the context of war. The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? In sum, persons who demonstrate an intent to surrender create a rebuttable presumption that they are hors de combat and no longer a threat to the enemy. 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. Article 42 of Additional Protocol I provides that in an international armed conflict no person parachuting from an aircraft in distress shall be made the object of attack during his descent and, upon reaching enemy territory, he or she must be given a reasonable opportunity to surrender before being made the object of attack, unless it is apparent that he is engaging in a hostile act. Attacking persons who are recognized as hors de combat is prohibited. Marsh, Jeremy and Glebe, Scott L, Time for the United States to Directly Participate (2011) 1 58 77 This is the original sense of applicability, which predates the 1949 version. As Polybius put it, [t]he result was that the Romans enter into possession of everything and those who surrender remain in possession of absolutely nothing.Footnote 19 Bradbury, Jim, The Medieval Siege (The Boydell Press Schmitt, Michael N, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance (2010) 50 When is Surrender Effective under International Humanitarian Law? One of the more infamous examples was the alleged false surrender of British troops at Kilmichael, during the Irish War of Independence. Green, Leslie, The Contemporary Law of Armed Conflict (Manchester University Press Cte d'Ivoire, Droit de la guerre, Manuel d'instruction, Ministre de la Dfense, Forces Armes Nationales (2007) 4647. Geneva Conventions of 1949 Germany signed the Convention of 1929, however, that didn't prevent them from carrying out horrific acts on and off the battlefield and within their military prison. Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 16, first para. It may be reasonable, for example, for the commander to utilise readily available equipment (such as night vision goggles or high performance binoculars) to check whether the enemy has expressed an intention to surrender before they are engaged, provided, of course, that the time spent preparing the equipment or using it does not compromise military objectives. As Lubell explains, [w]hen we actually come to apply human rights law in practice to situations of armed conflict, certain difficulties do appear: 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. 21 February 2018. There were, however, three notable exceptions to this rule. 118 60. 131 Schmitt, Michael N and Widmar, Eric W, On Target: Precision and Balance in the Contemporary Law of Targeting (2014) 7 26 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. 97 and that [t]he hoisting of a white flag has no other legal meaning in the law of war.Footnote Or life-sustaining stars . International tribunals have determined that during times of international and non-international armed conflict international humanitarian law does not displace the obligations imposed upon states by international human rights law.Footnote 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. 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. 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 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. View all Google Scholar citations 45 The ICC Statute goes farther than the Fourth Geneva Convention. Source. Paul Cartledge, Surrender in Ancient Greece in Afflerbach and Strachan (n 2) 15, 21. Such persons are known as parlementaires. 47 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. Robertson, Horace, The Obligation to Accept Surrender (1995) 68 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 Person as author : MacBride, Sen In : Armaments, arms control and disarmament, a UNESCO reader for disarmament education, p. 315-327 Language : English Year of publication : 1981. book part 9 18 In practice, it [the rule of surrender] is one of the most important rules of the Protocol [Additional Protocol I (n 6 below)]: Hamdiarguedthat such detentionwas illegal under the Geneva Conventions, withoutexpress Congressional consent. Given their legal immunity from direct targeting, civilians do not have the legal capacity to surrender. 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 31 81 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 As a result, virtually any conduct could be justified on the basis that it accrued a military advantage, even though it was highly dubious from a humanitarian perspective. 124 20 Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 50 Geneva Convention relative to the Protection of Civilian Persons in Time of War (2nd part) ADOPTED 12 August 1949 BY the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August 1949 Share View ratification status by country Table of Contents Part I The Oxford Manual of 1880, a non-binding document produced by the Institute of International Law, explained that it was prohibited to injure or kill an enemy who has surrendered at discretion or is disabled, and to declare in advance that quarter will not be given, even by those who do not ask it for themselves.Footnote 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. See generally For the purpose of clarity, it must be stressed that the legal obligation imposed by the rule of surrender is that opposing forces cannot directly target surrendered persons. 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 108 83 77 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. International Review of the Red Cross 3CrossRefGoogle Scholar. 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. [1] It is this version of the Geneva Conventions which covered the treatment of prisoners of war during World War II. Journal of National Security and Policy 379, 387Google Scholar. Published online by Cambridge University Press: 39 55 Other emblems were later recognized, and the Geneva Conventions of 1949, the main topic of this article, confirmed them all. 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. US Department of Defense (n 77) 644. 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. 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 US pilots then radioed military headquarters, explaining that the two insurgents came out [of the truck] wanting to surrender.Footnote Other states similarly reject the contention that the white flag indicates an intention to surrender. Is specially recruited locally or abroad, 2. . and reveals that targeting is to be conducted according to the more permissive standards set by international humanitarian law rather than the more restrictive standards imposed by international human rights law.Footnote This chimes with the ICRC commentary to Rule 47 which, after citing many military manuals, explains that [i]n land warfare, a clear intention to surrender is generally shown by laying down one's weapons and raising one's hands or by displaying a white flag.Footnote A surrender may be accomplished peacefully or it may be the result of defeat in battle. 8 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 that the relevant treaties are silent as to the conduct that constitutes an act of surrender, state practice becomes an important indicator of the ways in which ambiguous or unclear treaty provisions must be interpreted.Footnote Art 32 of the Hague Regulations 1907 (n 48) provides that persons who cross the battlefield in order to conduct negotiations with the opposing force cannot be made the object of attack from the moment they assume this role until the moment it is concluded. Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press being groups who exhibit a sufficient degree of military organization and belong to a party to the conflictFootnote ) and, on the other hand, civilians.Footnote 39, Given that the rule of surrender appeals to international humanitarian law's two foundational principles of military necessity and humanity, by the end of the nineteenth century extensive state practice had cohered around the notion that enemy forces who had expressed an intention to surrender must not be made the object of attack. See, eg, Doswald-Beck (n 70), Lubell (n 80), Sassli and Olson (n 71), Murray and others (n 86) para 511. 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. As the quotations from the above military manuals reveal, the white flag does occupy an important role in international humanitarian law. Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 261. 21 War crimes are defined as acts which violate the laws and customs of war (established by the Hague Conventions of 1899 and 1907), or acts that are grave breaches of the Geneva Conventions and Additional Protocol I and Additional Protocol II. It is a war crime under Protocol I of the Geneva Convention. Twenty-six countries ratified the Conventions in the early 1990s, largely in the aftermath of the break-up of the Soviet Union, Czechoslovakia and the former Yugoslavia. Share and download Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales) for free. International humanitarian law (IHL) also protects other persons deprived of liberty as a result of armed conflict. 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 August 4, 2011 04:00:00 pm. [8] US Army policy, for example, requires that surrendered persons should be secured and safeguarded while being evacuated from the battlefield. The exception here is ICRC Study (n 6) 168. This agreement extended the protections described in the first Convention to shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships. For the purpose of this Statute, 'war crimes' means: Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under . [I]t is always permissible due to military necessity to attack the enemy's combatants. 15 75 44. 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 . The Conventions apply to all cases of armed conflict between two or more signatory nations, even in the absence of a declaration of war. Such environments were generally lawless, meaning that the decision to offer surrender was a risky and dangerous option for combatants to take.Footnote 134 83 Carnahan, Burrus M, Lincoln, Lieber and the Laws of War (1998) 92 Instead, states regard insurgents as criminals and terrorists who must be held criminally responsible for their violent and seditious conduct. [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. Article 60 of the Lieber Code explained that it was unlawful for Union forces to refuse quarter, which was interpreted to mean that Union forces were legally prohibited from making the object of attack members of the Confederate army who had surrendered. 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. Professor Sir Adam Roberts, quoted in Leigh (n 123). No killing civilians. 70 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. [citation needed] Flags and ensigns are hauled down or furled, and ships' colors are struck. 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. Depending upon the circumstances, in the majority of instances it is likely that in order for force to be deemed necessary, the state must first utilise all reasonable measures at its disposal to communicate to the enemy an offer of surrender and, subsequently, to ascertain whether that offer has been accepted or rejected.Footnote Hostname: page-component-75cd96bb89-gxqps 64 6 122. Most of us can still recall that false dawn, that phase of hope. 113 He's wearing Russian EMR camouflage, and not only verbally communicated with them, but actually tried to physically remove the rifle away from their hands. The Brussels Manual of 1874, although never attaining the status of treaty law, also precluded the refusal of quarter.Footnote 32 They shall in all circumstances be treated humanely, without any adverse distinction. US Law of Armed Conflict Deskbook (International and Operational Department 2015) 78. 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 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 40 A request to advance across the battlefield to enter into negotiations is made by waving the white flag, which then must either be accepted or rejected by the opposing force. 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. 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. Under the first and second Geneva Conventions of 1949, the belligerents must protect the sick, wounded and shipwrecked as well as medical personnel, ambulances and hospitals. Of civilians and prisoners of war during World war II to make the of... To military necessity to attack the enemy 's combatants of hope 's life applies also in hostilities they not! Legal immunity from direct targeting, civilians do not have the legal capacity to surrender Mechanism for Tribunals... 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