In responding to these criticisms, the US Department of Defence submitted a report to Congress, which maintained that the act of retreat does not amount to a positive act that clearly reveals an intention to surrender:Footnote Mattox, John Mark, Saint Augustine and the Theory of Just War (Continuum 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 110 During the period of direct participation civilians are able to surrender and, as with combatants, in order to do so they must perform a positive act which clearly indicates that they no longer intend to directly participate in hostilities. 18 It is well established that feigning surrender in order to invite the confidence of an enemy is a perfidious act. Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. 71 which stipulates that in times of an international armed conflict it is a war crime to kill or wound a person who, having laid down his arms or having no means of defence, has surrendered at discretion. An especially important principle that emerged during this period was that of military necessity. Murray, Daragh and others, Practitioners Guide to Human Rights Law in Armed Conflict (Oxford University Press 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. 120, Surrender is a legal exchange constituted by a valid offer and its subsequent acceptance.Footnote The US explains that [s]urrender may be made by any means that communicates the intent to give up. Section 4 provides some conclusions. Hilaire McCoubrey and Nigel D White, International Humanitarian Law: The Regulation of Armed Conflict (Dartmouth 1992) 227. Where persons clearly indicate that they no longer intend to participate in hostilities, they no longer represent a threat to military security and thus there is no military necessity to target them.Footnote Report on UK Practice, 1997, Notes of a Meeting with a Former Director of Army Legal Services, 19 June 1997, Ch 2.1, cited in 59 56 Another important question is whether combatants are required to offer vanquished forces the opportunity to surrender before direct targeting can commence? For information on immigration and links to the 1951 Conventionand 1967 Protocol Relating to the Status of Refugees, see the article aboutImmigration. 2010) 266Google Scholar. 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. Other emblems were later recognized, and the Geneva Conventions of 1949, the main topic of this article, confirmed them all. 126 American Journal of International Law 213, 217CrossRefGoogle Scholar. 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. In this Protocol, the fundamentals of "humane treatment" were further clarified. It is inconvertible that under international humanitarian law it is unlawful to directly target an enemy who has surrendered. The Geneva League of Nations is a start, I admit, but it is a start in the . False surrender is a type of perfidy in the context of war. 27 for this article. See generally Individual combatants can indicate a surrender by discarding weapons and raising their hands empty and open above their heads; a surrendering tank commander should point the tank's turret away from opposing combatants. 58 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. which, in the context of armed conflict, would be international humanitarian law. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, paras 78, 79. More recent times brought about an increased tendency to regulate warfare and thus the tendency towards regulating surrender continued and improved.Footnote Article 23(c) of Hague Convention IVFootnote 75 92. Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 Surrender involves an offer by the surrendering party (a unit or an individual solider) and an ability to accept on the part of his opponent: US Department of Defense (n 77) 641. The ICRChas a special role given by the Geneva Conventions: it handles, and is granted access to, the wounded, sick, and POWs. 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 Civilians are liable to direct targeting for such timeFootnote The Brussels Manual of 1874, although never attaining the status of treaty law, also precluded the refusal of quarter.Footnote 113 133 58 It does not necessarily indicate as it is often believed an intention to surrender.Footnote 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. 100 A battlefield surrender, either by individuals or when ordered by officers, normally results in those surrendering becoming prisoners of war. 114, In light of this disagreement, Henderson is surely correct in his assertion that [t]he flying of a white flag is not a definite symbol of surrender.Footnote 9 44 The High Contracting Parties undertake to respect 106 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. 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. Is retreat tantamount to surrender? Hostname: page-component-75cd96bb89-gxqps (c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape. 76 64 Thus, by about 1900, most publicists recognised a customary rule which made it unlawful to refuse quarter or to wound or kill those who unconditionally offered to surrender.Footnote 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. 21 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 . All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. 60. 104 65 American Journal of International Law 239CrossRefGoogle Scholar. 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. 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. For example, the concept of civilian is used in Additional Protocol II (n 49) arts 13 and 17. Other states similarly reject the contention that the white flag indicates 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. 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. 37 In such instances the adverse party is not under an obligation to offer its opponent the opportunity to surrender before direct targeting can commence but, instead, international humanitarian law prohibits the adverse party from making such a person the object of attack. Put otherwise, conduct that was not necessary to hasten the war's end was prohibited. 64 81 677 @RealColfair Replying to @SamRamani2 False surrender is a type of perfidy in the context of war. 7 112, 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. Ms Evans is wrong to claim that, under the Geneva Convention, refugees should seek refuge in the first safe country they come to. As a result, state practice makes it clear that the simple fact that troops are retreating does not demonstrate an intent to surrender.Footnote 131 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 Render date: 2023-01-18T22:59:46.379Z Looking for Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales)? 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. 32 56 34 102 See generally 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. The kernel of the code of chivalry was that knights were required to treat enemy knights in an honourable and chivalrous manner, and an important principle contained within this code was the obligation to accept valid offers of surrender.Footnote It requires that the wounded, sick and shipwrecked be collected and cared for. 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 Such limited state practice, of course, creates difficulties in attempting to define the contours of a rule of treaty and customary law. Fighters are assumed to be continually participating directly in hostilities (even during lulls in participation) and the demands of military necessity justify their direct targeting. Robertson, Horace, The Obligation to Accept Surrender (1995) 68 If the approach described above gains traction within state practice (as it has done within academic literature),Footnote A British lieutenant and two soldiers advanced to accept what they thought was a proffered surrender. 139 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 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. International Review of the Red Cross 737, 738CrossRefGoogle Scholar. The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war. For example, Article 41(2) of Additional Protocol I expressly imposes an obligation to accept offers of surrender but merely states that a person is hors de combat where he or she expresses an intention to surrender. 79 50 5 This was known as the doctrine of dedito: as soon as opposing forces fell into the hands of the Romans they no longer technically existed and their Roman captors could do with their captives as they pleased. Guidance on how a person expresses an intention to surrender is provided by the Official Commentary to Article 41(2) of Additional Protocol I:Footnote 108 US Department of Defense (n 77) 644. 16 95 This Convention protects wounded and infirm soldiers and medical personnel who are not taking active part in hostility against a Party. 126 52 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. Also the Geneva convention only exists on our planet and even then not every country follows it. 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 Indeed, there is support for this approach in a number of military manuals. 60 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). While the notion of attempting to escape is relatively self-explanatory, what constitutes a hostile act is far from clear. The principle of military necessity was intended originally therefore to operate as a principle of restraint. 2012) 75Google Scholar. A US report into the incident explained:Footnote 26 Case of Abella v Argentina (Tabala) (1997) Inter-Am Ct HR, Case No 11.137, Report No 55/97, 18 November 1997. Given the importance of surrender to realising the humanitarian objective that underpins international humanitarian law, this legal framework must embrace a common vernacular that enables those embroiled in armed conflict to engage in conduct with the confidence that it is a recognised method of expressing an intention to surrender. who possess a continuous combat function.Footnote 118 68 We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Carnahan, Burrus M, Lincoln, Lieber and the Laws of War (1998) 92 28 112 1985) 6Google Scholar. Meron, Theodor, The Humanization of Humanitarian Law (2000) 94 113. 111 Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced. In its legal dimension, where a valid offer of surrender is communicated to and received by an opposing force, it is legally obligated to accept that offer and refrain from making surrendered persons the object of attack.Footnote 124 The wording of this provision is repeated verbatim in Article 8(2)(b)(vi) of the ICC Statute,Footnote General Provisions Art 1. Source. [1] It is this version of the Geneva Conventions which covered the treatment of prisoners of war during World War II. In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. 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. (3) Have the persons surrendering unconditionally submitted themselves to the authority of their captor? Leiden Journal of International Law 315, 343CrossRefGoogle Scholar. Christian knights were therefore relieved of any obligation to accept offers of surrender by non-Christian combatants.Footnote Bradbury, Jim, The Medieval Siege (The Boydell Press 66 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 CrossRefGoogle Scholar. Following the horrendous civilian slaughter witnessed in the Second World War, a revised Geneva Convention was drawn up in 1949 to address the treatment of non-combatants. The other two are whether he is "in the power of an adverse Party," or . On rare occasions the demands of military necessity converge with humanitarian considerations and prompt the law in the same direction.Footnote