It is therefore concerning that a number of military manuals erroneously identify the white flag as a sign of surrender under international humanitarian law. These four treaties have been adopted by all 194 nations of the world. 75 [11] This prohibition is repeated in Additional Protocol II, which adds that "it is prohibited to order that there shall be no survivors". 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. Robertson, Horace, The Obligation to Accept Surrender (1995) 68 Now that the theoretical basis for the rule of surrender has been revealed, it can be utilised as a lens through which state practice relating to surrender can be observed and scrutinised. What is perhaps most surprising is that there has been relatively little consideration of the rule of surrender within international humanitarian law literature. Finally, it discusses how occupiers are to treat an occupied populace. 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. Some Concluding Remarks on the History of Surrender in Afflerbach and Strachan (n 2) 435, 442. A battlefield surrender, either by individuals or when ordered by officers, normally results in those surrendering becoming prisoners of war. Even more so forbidding the use of superweapons on or near civilian populations. Christian knights were therefore relieved of any obligation to accept offers of surrender by non-Christian combatants.Footnote 3. 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. The peacemaking symbolism of the white flag is now enshrined in the Geneva Convention, though it's rarely mentioned in national flag codes. 27 One would usually expect to find the answers to these questions in those international humanitarian law treaties that contain the rule of surrender. 7 Marsh, Jeremy and Glebe, Scott L, Time for the United States to Directly Participate (2011) 1 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. False surrender is a type of perfidy in the context of war. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. 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. 111 25 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 122 20 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. 2 116 US Department of Defense (n 77) 644. Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (Cambridge University Press 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 It is a war crime under Protocol I of the Geneva Convention. ICRC Study (n 6) r 47. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (as amended 21 December 2001) (entered into force 2 December 1983) 1342 UNTS 137. When is Surrender Effective under International Humanitarian Law? 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. [1] It is this version of the Geneva Conventions which covered the treatment of prisoners of war during World War II. 133 Accounts of false surrender can be found relatively frequently throughout history. GC III (n 50) art 4A. 71 In this Protocol, the fundamentals of "humane treatment" were further clarified. 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 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. 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. The effect was gradually to transform the law of war into an international humanitarian law; thus our modern international humanitarian law being a corpus of law predicated upon the principles of military necessity and humanity was born. They're now collectively known as the Geneva Conventions of 1949 and contain the most important rules of war. It also identified new protections and rights of civilian populations. As the ICTY explained in the Tadi judgment, when identifying state practice in the context of customary international humanitarian law reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions: ICTY, Prosecutor v Tadi, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-AR72, Appeals Chamber, 2 October 1995, [99]. The First Geneva Convention was presided over by Swiss general Guillaume Henri Dufour on August 22, 1864. 49 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. [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. 71 The other two are whether he is "in the power of an adverse Party," or . (underscore in the original). the consequence would be that where a situation is under the control of a stateFootnote The issue is one of reasonableness. 108 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 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. 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. for this article. [7], The Third Geneva Convention states that prisoners of war should not be mistreated or abused. Luban, David, Military Necessity and the Culture of Military Law (2013) 26 Hague Convention (II) with respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 4 September 1900) 26 Martens Nouveau Recueil (ser 2) 949. 103 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 While there was a clear obligation not to make objects of attack enemy knights who had surrendered, captured knights could still be sold for ransom: John Gillingham, Surrender in Medieval Europe An Indirect Approach in Afflerbach and Strachan (n 2) 55, 68. 62 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 . The singular term "Geneva Convention" is often used to refer to the agreement of 1949. It also specifies the rights of internees (POWs) and saboteurs. See also Hague Regulations IV (n 48) art 23(c): It is forbidden [t]o kill or wound an enemy who has surrendered at discretion. 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. Put otherwise, conduct that was not necessary to hasten the war's end was prohibited. In the words of the Committee, the police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions: Human Rights Committee, Suarez de Guerrero v Colombia, Communication No. 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. 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. 73 23 The Manual then proceeds to explain that [e]verything depends on the circumstances and conditions of the particular case. The various meanings of the flag were later codified in the Hague and Geneva Conventions of the 19th and 20th centuries. and gives no conclusive answer as to what human rights law requires of government authorities using force against fighters.Footnote Afflerbach, Holger, Going Down with Flying Colours: Naval Surrender from Elizabethan to Our Own Times in Afflerbach, Holger and Strachan, Hew (eds), How Fighting Ends: A History of Surrender (Oxford University Press 7 In other instances, however, international tribunals and human rights bodies have deviated from Nuclear Weapons and applied human rights law standards in determining the legality of the use of force by states.Footnote 78 O'Connell (n 19) para 109. The US Corporate government seeks to roll over its payments past the deadline. Where, however, a confrontation occurs between a state and an armed group within that state's territory, and that state exercises control over the situation, the members of the armed group are under the jurisdiction of the state and this is a scenario that typically points to human rights as the lex specialis.Footnote Source. 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 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. 106 54 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. The principle of military necessity therefore failed to provide an effective mechanism to quell the savagery and brutality associated with previous armed conflicts. Such conduct is known as perfidy. This has been consistently interpreted as imposing a treaty obligation upon parties to this Protocol to accept valid offers of surrender.Footnote 2013) 11316Google 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. . The offer to surrender must be clear and unconditional: US Law of War Manual (n 68) para 5.9.3.2. 1981) 50910Google Scholar. 101 US Department of Defense (n 77) 641. The act of surrender, therefore, is a continuing obligation insofar as the persons surrendering must continually comply with the demands of their captor. Henderson, Ian, The Contemporary Law of Targeting (Martinus Nijhoff 101 Though 16 governments signed the conventions in 1864, Great Britain, Germany, Sweden and the United States did not; the U.S. Congress finally ratified the conventions in 1882, making it the. in other words, surrendered persons must place themselves at the captor's discretion.Footnote It is well established that feigning surrender in order to invite the confidence of an enemy is a perfidious act. 120, Surrender is a legal exchange constituted by a valid offer and its subsequent acceptance.Footnote Schmitt, Michael N and Widmar, Eric W, On Target: Precision and Balance in the Contemporary Law of Targeting (2014) 7 77 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. It does not necessarily indicate as it is often believed an intention to surrender.Footnote 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]. 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 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. 43 International Review of the Red Cross 599, 606CrossRefGoogle Scholar. Once Islam is defined as inherently violent and . Virginia Journal of International Law Online 1, 20Google Scholar. Additional Protocol II (n 49) art 13(1). 53 Three conventions followed: in 1906, 1929 and 1949. 86 111 According to the Israeli Military Manual, it is absolutely forbidden in the strongest terms to attack such a combatant [one who has surrendered]. 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 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 It is a war crime under Protocol I of the Geneva Convention . The development of the Geneva Conventions was closely associated with the Red Cross, whose founder, Henri Dunant, initiated international negotiations . False surrender is basically the "CALL THE AMBULANCE BUT NOT FOR ME" meme. Close this message to accept cookies or find out how to manage your cookie settings. Where persons clearly indicate that they no longer intend to participate in hostilities, they no longer represent a threat to military security and thus there is no military necessity to target them.Footnote Robertson (n 3) 547. [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. US Law of Armed Conflict Deskbook (n 60) 167. [T]ribal and pre-state societies seldom [took] prisoners and usually [did] not accept surrender: Lawrence H Keely, Surrender and Prisoners in Prehistoric and Tribal Societies in Afflerbach and Strachan (n 2) 7, 7. 32 Dominican Republic, La Conducta en Combate segn las Leyes de la Guerra, Escuela Superior de las FF.AA. They were killed by enemy fire in a disputed incident. Answer (1 of 4): Yeah absolutely, couldn't agree more Mr Putin . Upholding the rules Since then, the rules of war have been ratified by 196 states.. 124 12 This article does not consider when acts of surrender are legally effective during naval and aerial warfare, to which different rules apply.Footnote Presumably, surrendered persons have only to comply with reasonable demands of their captor: captors cannot require their captives to undertake conduct that exposes them to danger and, if they refuse to comply, determine that they have committed a hostile act and are therefore liable to attack. British officer shocked by treatment of prisoners as 'oriental cattle' Owen Bowcott @ owenbowcott Thu 2 Jan 2003 20.58 EST US troops guarding communist captives in the Korean War violated the. They had held a State Convention in February, at which no openly avowed disunionist appeared. 2009) 22Google Scholar. Furthermore, the Rome Statute establishing the International Criminal Court (ICC Statute) determines that in times of internationalFootnote 48 93 As the quotations from the above military manuals reveal, the white flag does occupy an important role in international humanitarian law. 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 Also the Geneva convention only exists on our planet and even then not every country follows it. 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. Military manuals which, as I have already explained, represent important sources of state practice that can be used to interpret treaty rules and obligations under customary international humanitarian law generally fail to address how surrender can be achieved in practical terms during land warfare. 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. The Geneva Convention of 1949 was negotiated after World War II to update the first three treaties and add a fourth to protect civilians. 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 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. 122. In the Court's often quoted dictum:Footnote About the Mechanism | ; Cases; Menu 128 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 Specifically, it prohibits attacks on civilian hospitals, medical transports, etc. But in wars against outsiders, infidels, or barbarians, the West had inherited a brutal legacy from the Romans which they termed bellum romanum, or guerre mortellle, a conflict in which no holds were barred and all those designated as enemy, whether bearing arms or not, could be indiscriminately slaughtered: Michael Howard, Constraints on Warfare in Howard, Andreopoulos and Shulman (n 12) 1, 3. With civilians bearing the brunt of many protracted conflicts, scholars and aid agencies have raised questions about the continued relevance of IHL. 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.. 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 The Apache helicopter opened fire on the insurgents, eventually killing them both. and IV (1907)Footnote 51 that they no longer intend to directly participate in hostilities and therefore no longer represent a threat to the military security of the opposing party. 64 18 74 57 139 2. Neither treaty law, including the relevant commentaries, nor military manuals indicate that retreat is indicative of surrender. Combatants are assumed to be constantly directly participating in hostilities and are incontrovertibly permissible objects of attack.Footnote Perhaps the thorniest issue is what positive act (or acts) are recognised by international humanitarian law as expressing an intention to surrender. Additional Protocol I does not define what amounts to a hostile act but the Commentary to the Additional Protocol provides examples, such as resuming combat functions if the opportunity arises, attempting to communicate with their own party, and destroying installations and equipment belonging to their captor or to their own party.Footnote 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. Before we examine what type of conduct constitutes a positive act indicating an intention to no longer directly participate in hostilities, it is first necessary to identify those persons whom international humanitarian law regards as directly participating in hostilities during armed conflict, because it is within this context that the rule of surrender operates. There is no obligation on refugees to claim asylum in the first safe country they reach. Under this Convention, civilians are afforded the same protections from inhumane treatment and attack affordedto sick and wounded soldiers in the first Convention. In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. It was certified on March 25, 1935 and it was subsequently ratified by the Filipino people in a plebiscite on May 14, 1935. 62 Conventions Approved. For a good discussion of surrender in ancient Rome see Loretana de Libero, Surrender in Ancient Rome in Afflerbach and Strachan (n 2) 29. Its customary status during non-international armed conflict is confirmed by ICRC Study (n 6) r 15. 18 Attacking persons who are recognized as hors de combat is prohibited. The Geneva Conventions and their Additional Protocols is a body of Public International Law, also known as the Humanitarian Law of Armed Conflicts, whose purpose is to provide minimum protections, standards of humane treatment, and fundamental guarantees of respect to individuals who become victims of armed conflicts. All in all, the point is that even if an offer of surrender is validly extended under international humanitarian law, if that offer cannot reasonably be discerned in the circumstances then, from the perspective of the opposing force, the threat represented by the enemy remains and the principle of military necessity continues to justify their direct targeting. 23 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. [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). Armed conflict in ancient Greece was therefore largely unregulated and, in particular, the Greek code of honor offered no protection to surrendering soldiers.Footnote The leaders of the surrendering group negotiate privileges or compensation for the time, expense and loss of life saved by the victor through the stopping of resistance. Similarly, although containing the rule of surrender, Common Article 3 and Article 4 of Additional Protocol II do not specify the conditions that constitute an effective surrender. 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 This Convention protects wounded and infirm soldiers and medical personnel who are not taking active part in hostility against a Party. He may signal to you with a white flag, by emerging from his position with arms raised or yelling to ceasefire.Footnote (3) Have the persons surrendering unconditionally submitted themselves to the authority of their captor? If in command, I will never surrender the members of my command while they still have the means to resist". 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 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. The rationale underlying this rule can be explained on the basis that where it is discernible that persons have parachuted from an aircraft in distress and are not engaging in hostile acts, this is regarded as a form of positive conduct that signals that they no longer represent a threat to military security and thus there is no military necessity to directly target them. 17. and non-internationalFootnote CrossRefGoogle Scholar. The doctrine of universal jurisdiction is based on the notion that some crimes, such as genocide, crimes against humanity,torture, and war crimes, areso exceptionally gravethat they affect the fundamental interests of the international community as a whole. The Brussels Manual of 1874, although never attaining the status of treaty law, also precluded the refusal of quarter.Footnote There were, however, three notable exceptions to this rule. 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