Pictet, Jean, Development and Principles of International Humanitarian Law (Martinus Nijhoff For a good discussion of surrender in ancient Rome see Loretana de Libero, Surrender in Ancient Rome in Afflerbach and Strachan (n 2) 29. 83 In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. As Lubell explains, [w]hen we actually come to apply human rights law in practice to situations of armed conflict, certain difficulties do appear: Journal of National Security and Policy 379, 387Google Scholar. At least for the purpose of these international legal rules, the laying down of weapons is an effective method through which to express an intention to surrender. [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. Where conflict occurs the principles of military necessity and humanity have to be delicately balanced, with rules being produced that reflect a dialectical compromise between these two opposing forces.Footnote 7 44. Once Islam is defined as inherently violent and . CrossRefGoogle Scholar. 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. 20 123 False surrender is a type of perfidy in the context of war. Attacking persons who are recognized as hors de combat is prohibited. Such persons are known as parlementaires. The Geneva Convention is a standard by which prisoners and civilians should be treated during a time of war. The US Law of War Manual explains that [a]ll hostile acts or resistance, or manifestations of hostile intent, including efforts to escape or to destroy items, documents, or equipment to prevent their capture by the enemy, vitiate an otherwise legally effective surrender: US Law of War Manual (n 68) para 5.9.3.2. Cte d'Ivoire, Droit de la guerre, Manuel d'instruction, Ministre de la Dfense, Forces Armes Nationales (2007) 4647. 105 78, International human rights law may muddy the waters here. 94 Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? 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. The ICC Statute goes farther than the Fourth Geneva Convention. It also grantsthe right to proper medical treatment and care. [The opponent] may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon an attempt to surrender in the midst of a hard-fought battle is neither easily communicated nor received. 2013) 1Google Scholar, para 109. 1987) 480Google Scholar. 110 Edited by: . 107 Schmitt, Michael N, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance (2010) 50 The Court rejected this argument andheld that consent exised since September 11, 2001, through an Authorization for Use of Military Forces (AUMF), a Congressional resolution which empowered the President to use all necessary and appropriate forces against any nations, organizations, or personsthat he determinedto have planned, authorized,committed, or aided in the September 11, 2001attacks. It is a war crime under Protocol I of the Geneva Convention. 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. Seven new ratifications since 2000 have brought the total number of States Party to 194, making the Geneva Conventions universally applicable. 60 107, However, not all states identify the white flag as being indicative of an intention to surrender. The law of war obligates a party to a conflict to accept the surrender of enemy personnel: ibid. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, paras 78, 79. 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 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 Such conduct is known as perfidy. and (3) Have surrendered persons unconditionally submitted to the authority of their captor? 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'. 23 67 The High Contracting Parties undertake to respect 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. 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 136 42, Nowadays, the customary international law status of the rule of surrender is confirmed by the fact that a significant number of military manuals adopted by states which represent important sources of state practice when identifying obligations under customary international humanitarian lawFootnote 35 This article has explored state practice with the aim of clarifying the criteria that give rise to an effective act of surrender under conventional and customary international humanitarian law in times of international and non-international armed conflict. It also grants the right to proper medical treatment and care. 81 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 Hans-Henning Kortm, Surrender in Medieval Times in Afflerbach and Strachan (n 2) 41, 47. who possess a continuous combat function.Footnote Does the act of retreat amount to conduct that signals an intention to surrender under either treaty or customary international law? [A]ll persons who are neither members of the armed forces of a party to the conflict nor participants in a leve en masse are civilians: Additional Protocol I (n 6) art 50(1). This approach is consistent with the obligation arising under the law of internationalFootnote However, the phraseology of these agreements means that civilians necessarily fall into a residual category of anyone who is not a fighter. Additional Protocol I (n 6) art 57(1). the consequence would be that where a situation is under the control of a stateFootnote 120 20 99. 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 It is therefore concerning that a number of military manuals erroneously identify the white flag as a sign of surrender under international humanitarian law. Many bands took no prisoners, not even children or young women. 101 For this reason it is a cardinal principle and intransgressible rule of international humanitarian law that civilians cannot be directly targeted.Footnote These four treaties have been adopted by all 194 nations of the world. It also included the prohibition of scientific experiments on POWs in response to the torture exacted on prisoners by German and Japanese doctors. The First Geneva Convention was presided over by Swiss general Guillaume Henri Dufour on August 22, 1864. if we accept arguendo that this view represents lex lata (the law as it stands) civilians who repeatedly directly participate in hostilities possess the capacity to surrender and, in order to become hors de combat and enjoy immunity from direct targeting, they must perform a positive act which signals that they no longer intend to participate in hostilities. 1981) 50910Google Scholar. [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. 119 2009) 22Google Scholar. While the 1949 Geneva Conventions have been universally ratified, the Additional Protocols have not. 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. At present, 168 States are party to Additional Protocol I and 164 States to Additional Protocol II,this still places the 1977 Additional Protocols among the most widely accepted legal instruments in the world. ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. Convention I: This convention protects wounded and infirm soldiers and ensures humane treatment without discrimination founded on race, color, sex, religion or faith, birth or wealth, etc. American Journal of International Law 239CrossRefGoogle Scholar. 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. Other emblems were later recognized, and the Geneva Conventions of 1949, the main topic of this article, confirmed them all. 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. See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the 9th UN Congress on the Prevention of Crime and Treatment of Offenders, Havana, 27 August7 September 1990, UN Doc A/CONF.144/28/Rev.1 (1990), art 10 of which provides that before using force, law enforcement officials shall give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons. The Geneva Convention of 1949 requires signatory nations to pass the necessary laws and "provide effective penal sanctions" for persons "committing, or ordering to be committed" any "grave. Answer (1 of 4): Yeah absolutely, couldn't agree more Mr Putin . 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 United Nations | International Residual Mechanism for Criminal Tribunals UN IRMCT. 108 All persons protected under these conventions must be given shelter and cared for by the party to the conflict that holds power over them. The principle of military necessity was intended originally therefore to operate as a principle of restraint. Additional Protocol I Article 10 of the 1977 Additional Protocol I provides: 1. It also identified new protections and rights of civilian populations. 138 Last updates June 10, 2019 by Krystyna Blokhina, International Committee for the Red Cross and Red Crescent, 1952 Commentary on the Geneva Conventions, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of 12 August 1949, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of 12 August 1949, Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949, Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, of 8 June 1977, Reference Guide to the Geneva Conventions, List of Nations Ratifying or are Otherwise Party to the Geneva Conventions and/or Protocols, ICL Practice Relating to Rule 157, Jurisdiction over War Crimes, Category: International, Transnational, and Comparative Law, Geneva Conventions and their additional protocols, Disputes arising under the Conventions or the Protocolsare settled by courts of the member nations (Article 49 of Convention I) or by international. International Review of the Red Cross 3CrossRefGoogle Scholar. The Apache helicopter opened fire on the insurgents, eventually killing them both. 51 Total War, Encyclopedia Britannica Online, 2015, https://www.britannica.com/topic/total-war. 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 The law of international armed conflict defines civilians in negative terms as those persons who do not qualify as combatants.Footnote 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. I doubt after the fall of humanity with dark forces living on the moon and superpowered zombies defending earth we still hold the Geneva convention as anything more than a . The wording of this provision is repeated verbatim in Article 8(2)(b)(vi) of the ICC Statute,Footnote The Geneva Conventions and the Death of Osama Bin Laden. 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. Additionally, the ICRC Study determined that the content of art 4 is contained (albeit implicitly) in Common Article 3 to the Four Geneva Conventions of 1949, which can be regarded, therefore, as imposing a legal obligation upon state parties to refrain from making the object of attack persons who have surrendered during a non-international armed conflict: ICRC Study (n 6) 165, r 47 and accompanying commentary. [4], 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. Is specially recruited locally or abroad, 2. . This convention produced a treaty designed to protect wounded and sick soldiers during wartime. What is perhaps most surprising is that there has been relatively little consideration of the rule of surrender within international humanitarian law literature. Doswald-Beck, Louise, The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? (2006) 88 If Lewis's claim is false, however, the claim itself is dangerous. Copyright Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2018. Undoubtedly, the Brussels and Oxford Manuals heavily influenced the trajectory of the Hague Peace Conferences in 1899 and 1907 and the Regulations that these conferences produced. Its official name is the Convention relative to the Treatment of Prisoners of War, Geneva July 27, 1929. According to the Israeli Military Manual, it is absolutely forbidden in the strongest terms to attack such a combatant [one who has surrendered]. 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. It entered into force 19 June 1931. 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 Certain states maintain the view that where civilians repeatedly participate directly in hostilities to the extent that their future participation is likely and predictable, they remain a threat to the military security of the opposing party and can be directly targeted even notwithstanding lulls in participation.Footnote 37, The view that surrendered forces should not be made the object of attack is supported by the principles of military necessity and humanity. Green, Leslie, The Contemporary Law of Armed Conflict (Manchester University Press 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. 71 it is difficult to draw firm conclusions. The ICRC, for example, expressly considers and then rejects this contention: Melzer (n 57) 70. 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. 108 [I]t is always permissible due to military necessity to attack the enemy's combatants. Mattox, John Mark, Saint Augustine and the Theory of Just War (Continuum One of the more infamous examples was the alleged false surrender of British troops at Kilmichael, during the Irish War of Independence. 1 99 US Law of War Manual (n 68) para 5.4.6.3. This language was added in 1949 to accommodate situations that have all the characteristics of war without the existence of a formal declaration of war, such as a. 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 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. 136 The signing Nations agreed to further restrictions on the treatment of "protected persons" according to the original Conventions, and clarification of the terms used in the Conventions was introduced. 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. Common Article 3 (n 50); Additional Protocol II (n 49) art 1. 120, Surrender is a legal exchange constituted by a valid offer and its subsequent acceptance.Footnote 5 79 1 24 See, eg, Doswald-Beck (n 70), Lubell (n 80), Sassli and Olson (n 71), Murray and others (n 86) para 511. Those same treaties also forbid armies from using the white flag to fake. 25 45 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. The issue is one of reasonableness. 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. In Hamdi,a U.S. citizen wasaccused of being a member of the Taliban forceson U.S. soil as an "enemy combatant," and was detained by unilateral Executive decision;The U.S. Supreme Court ruled on the validity of his detention. However, most agree surrender means ceasing resistance and placing oneself at the captor's discretion: US Law of Armed Conflict Deskbook (n 60) 138. 117 No destroying inhabited planets. Retreating forces remain dangerous as the enemy force may recover to counterattack, consolidate a new defensive position, or assist the war effort in other ways.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. 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 Initially, the Manual explains that:Footnote 68 When the first great gathering to inaugurate the English League of Nations Union met in Westminster, people were turned away from the dangerously packed hall, not by the hundred but by the thousand. Also, although surrendered persons cannot be made the object of attack, they can be the victims of incidental injury as a result of attacks against lawful targets provided that the collateral damage is not excessive in relation to the concrete and direct military advantage anticipated: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force 8 June 1977) 1125 UNTS 3 (Additional Protocol I), art 51(5)(b); Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross (ICRC) and Cambridge University Press 2005, reprinted 2009) (ICRC Study) r 14. The US military was criticised for this conduct.Footnote 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. Scriptures from major world religions, safety tips & reminders, science facts, world cuisine, entertainment, pets, life discussion topics, and more. 25 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 122. 21 February 2018. 27 That Convention reassembled at Jefferson City, on the 22d of July, and declared the government of which Jackson was the head, to be illegal. (3) Have the persons surrendering unconditionally submitted themselves to the authority of their captor? 101 Third, where a city was subject to a siege and the city refused to surrender, once the city was stormed it was accepted that knights were permitted to sack the city and that the normal code of chivalry (and thus the rule mandating the acceptance of surrender) was inoperative.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 21 (c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape. Leiden Journal of International Law 315, 343CrossRefGoogle Scholar. Failure to adhere to such demands provided they were reasonable in the sense that they did not place the surrendering forces in danger of being caught in crossfire would constitute unwillingness to submit themselves to the authority of their captor and would therefore vitiate their surrender, which means that they would remain permissible objects of attack under international humanitarian law.Footnote Close this message to accept cookies or find out how to manage your cookie settings. Combatants include those persons who are incorporated into the regular armed forces of a state by domestic law. Francis Lieber, Instructions for the Government of Armies of the United States in the Field, General Order No 100, 24 April 1863 (Lieber Code), art 14. 126 This Convention protects wounded and infirm soldiers and medical personnel who are not taking active part in hostility against a Party. impose an obligation upon state parties to refrain from making the object of attack a person who has expressed an intention to surrender. 60. 88 Hostname: page-component-75cd96bb89-gxqps Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 16, first para. 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. 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