Another important question is whether combatants are required to offer vanquished forces the opportunity to surrender before direct targeting can commence? 71 It is not just a matter of whether he "immediately surrendered""clearly expressing an intention to surrender" is only one of three conditions under this rule. 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 Sandoz, Swinarski and Zimmermann (n 1) 487. Contrary to popular belief, the waving of a white flag is not a legally recognised method of expressing an intention to surrender under either conventional or customary international humanitarian law it does not attract sufficient support within state practice and, indeed, the practice of a number of states openly rejects the contention that the waving of a white flag is constitutive of surrender. Second, after a careful examination of state practice, the article proposes a three-stage test for determining whether persons have surrendered under international humanitarian law: (1) Have persons attempting to surrender engaged in a positive act which clearly reveals that they no longer intend to participate in hostilities? In the Court's often quoted dictum:Footnote 50. Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? Marsh, Jeremy and Glebe, Scott L, Time for the United States to Directly Participate (2011) 1 Further, additional regulations regarding the treatment of civilians were introduced. 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. 2 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. R.11/45, 31 March 1982, UN Doc Supp No 40 (A37/40), para 13.2. 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. Combatants include those persons who are incorporated into the regular armed forces of a state by domestic law. Ratification grew steadily through the decades: 74 States ratified the Conventions during the 1950s, 48 States did so during the 1960s, 20 States signed on during the 1970s, and another 20 States did so during the 1980s. Indeed, it is for this reason that Article 42 of Additional Protocol I expressly provides that airborne troops are not protected by this rule airborne troops are militarily active and have yet to engage in a positive act that indicates an intention to place themselves hors de combat. The US pilots then radioed military headquarters, explaining that the two insurgents came out [of the truck] wanting to surrender.Footnote While other international humanitarian law treaties impose an obligation upon opposing forces to accept valid offers of surrender, they do not provide any guidance as to the type of conduct (verbal or otherwise) that signifies an intention to surrender. 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). Copyright Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2018. 33 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. Hors de combat is a French phrase commonly used in international humanitarian law to mean out of combat. As a result, they re-emerge as a threat to military security and the opposing force is justified in making them the object of attack. They're now collectively known as the Geneva Conventions of 1949 and contain the most important rules of war. 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 [10], False surrender is a type of perfidy in the context of war. As the law of non-international armed conflict in the context of targeting is currently unclear,Footnote 72 Initially, the Manual explains that:Footnote 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. The Russian Defence Ministry claims that at least 10 restrained Russian POWs were killed in a war crime Ukraine claims that Russia staged the capture of POWs and these supposed POWs opened fire on Ukrainian forces. 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. 45 From time immemorial, a white flag has been used as a signal of a desire to open communications with the enemy. It is well established that feigning surrender in order to invite the confidence of an enemy is a perfidious act. 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. (footnotes omitted). 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. No Colony Drops. The picture is more complex in relation to the white flag. 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. 36 Additional Protocol I (n 6) art 51(3). This is the requirement of Additional Protocol I (n 6) art 57(2)(a)(i), which explains that those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and not subject to special protections but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them. 22 The convention prohibits torture, assaults upon personal dignity, and execution without judgment. This is significant because where state practice is widespreadFootnote 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 131 58 Jewish & Christian scriptures, science facts, safety & reminder tips, cuisine, sports, books, art, music, movies, TV. Article 41(1) further explains that a person hors de combat shall not be made the object of attack; Article 41(2) explains that a person is hors de combat if he clearly expresses an intention to surrender. 115 Neither treaty law, including the relevant commentaries, nor military manuals indicate that retreat is indicative of surrender. Article 41(2) of Additional Protocol I and Rule 47 of the ICRC Study stipulate that a person who surrenders but subsequently engages in a hostile act or attempt[s] to escape is no longer regarded as hors de combat and again becomes liable to direct targeting.Footnote Indeed, I know of no pre-European contact bands that took male adults alive: ibid 8. Additional Protocol II (n 49) art 13(1). Even in the absence of physical apprehension a person can be so utterly in the power of the opposing force that he or she can no longer be regarded as representing a military threat. 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. 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 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 7 Dominican Republic, La Conducta en Combate segn las Leyes de la Guerra, Escuela Superior de las FF.AA. 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. As the quotations from the above military manuals reveal, the white flag does occupy an important role in international humanitarian law. That Convention reassembled at Jefferson City, on the 22d of July, and declared the government of which Jackson was the head, to be illegal. being groups who exhibit a sufficient degree of military organization and belong to a party to the conflictFootnote how and why people become prisoners of war, as well as when surrender must be accepted if recognized (although a false surrender or similar ruse would constitute a war crime in its own right . 18 A US report into the incident explained:Footnote It defines their rights and sets down detailed rules for their treatment and eventual release. 115, One final question remains. 46 120 The Lieber Code (as it became known) was promulgated by US President Abraham Lincoln to Union forces in 1863 and represented the first attempt to codify and systematise the law of war generally and the rule relating to surrender in particular. The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. That civilians can be directly targeted in international armed conflicts where they directly participate in hostilities is expressly mentioned in art 51(3) Additional Protocol I (n 6) and is undoubtedly representative of customary international humanitarian law: HCJ 769/02 Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and Others ILDC 597 (IL 2006) [2006], para 35. 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 False surrender is a type of perfidy in the context of war. Thus, the test imposed by international humanitarian law is whether a reasonable combatant operating in those circumstances would have been expected to discern the offer of surrender. 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. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Eric Adams Finds Despicable Excuse For Personal Incompetence. 95 Accordingly, I propose a three-stage test for determining when an act of surrender is legally effective under international humanitarian law: 1. General Provisions Art 1. Is retreat tantamount to surrender? 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. Robertson (n 3) 547. 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. r.j.buchan@sheffield.ac.uk. In order to be in the power of an adverse party the person in question does not have to be physically apprehended by the opposing force. 87 The moral argument for this is that as long as the soldier is participating in the military effort, he knowingly risks his life. [7], The Third Geneva Convention states that prisoners of war should not be mistreated or abused. Has data issue: true [3], Alternatively, in a surrender at discretion (unconditional surrender), the victor makes no promises of treatment, and unilaterally defines the treatment of the vanquished party. For example, Canada's Code of Conduct states that [t]he showing of a white flag is not necessarily an expression of an intent to surrender.Footnote Canada, Code of Conduct for CF Personnel (Office of the Judge Advocate General 2001) r 5 para 3. 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. These conflicts were usually fought without mercy because the initiation of armed conflict was regarded as triggering total war, a concept that described military conflict in which contenders [were] willing to make any sacrifice in lives and other resources to obtain a complete victory.Footnote Additional Protocol I Article 10 of the 1977 Additional Protocol I provides: 1. Attacking persons who are recognized as hors de combat is prohibited. In particular, it was the cruelties of the Thirty Years War that ultimately led to the jurisprudential consideration of the jus in bello [the law of war] and established a number of principles to be observed by combatants.Footnote 100. One of the more infamous examples was the alleged false surrender of British troops at Kilmichael, during the Irish War of Independence. 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 Close this message to accept cookies or find out how to manage your cookie settings. Scriptures from major world religions, safety tips & reminders, science facts, world cuisine, entertainment, pets, life discussion topics, and more. It renders the convicts or accused of such crimes to the jurisdiction of all signatory States, regardless of their nationality or territoriality of their crime. 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. Hostname: page-component-75cd96bb89-gxqps When is Surrender Effective under International Humanitarian Law? 24 Tieya, Wang and Min, Wei, International Law (Falu Chubanshe They had held a State Convention in February, at which no openly avowed disunionist appeared. State practice indicates that a surrendered person who fails to comply unconditionally with the instructions of the opposing force commits a hostile act and thereby forfeits immunity from targetingFootnote 22 Patrick E Tyler, War in the Gulf: The Overview; Iraq Orders Troops to Leave Kuwait but US Pursues Battlefield Gains; Heavy American Toll in Scud Attack, The New York Times, 26 February 1991, http://www.nytimes.com/1991/02/26/world/war-gulf-overview-iraq-orders-troops-leave-kuwait-but-us-pursues-battlefield.html?pagewanted=all. 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 A number of academics also hold this view: eg, Sandesh Sivakumaran, The Law of Non-International Armed Conflict (Oxford University Press 2012) 413 (an intention to surrender is indicated in the form of waving a white flag or discarding weapons and placing hands on heads). It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through"special agreements.". 136 The First Geneva Convention was presided over by Swiss general Guillaume Henri Dufour on August 22, 1864. 103 [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. As a result, state practice makes it clear that the simple fact that troops are retreating does not demonstrate an intent to surrender.Footnote 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. [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. 2012) 75Google Scholar. 71 Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 16, first para. It also grantsthe right to proper medical treatment and care. 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. United Kingdom, Joint Service Manual of the Law of Armed Conflict (2004) paras 10.510.5.1. The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? 122. Rome Statute establishing the International Criminal Court (entered into force 3 September 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(vi). 130 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. When a soldier surrenders, the army that takes. Law and History Review 469, 47677CrossRefGoogle Scholar. They shall in all circumstances be treated humanely, without any adverse distinction. 85 and that [t]he hoisting of a white flag has no other legal meaning in the law of war.Footnote 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. If the approach described above gains traction within state practice (as it has done within academic literature),Footnote which indicates in an absolutely clear mannerFootnote The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war. 103 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 Mattox, John Mark, Saint Augustine and the Theory of Just War (Continuum 28 Despite being signatory to the Conventions, there are some notable and often-criticized U.S. cases involving conduct that would otherwise be prohibited by the Conventions, such as Hamdi v. Rumsfield(2004). It also identified new protections and rights of civilian populations. 128. The logs revealed that during the Second Gulf War a US Apache helicopter engaged a truck containing two Iraqi insurgents. No destroying inhabited planets. Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 261. 94 53 for this article. Under this Convention, civilians are afforded the same protections from inhumane treatment and attack affordedto sick and wounded soldiers in the first Convention. Put differently, there is a pressing military need to target them directly. Retreat is not the same as surrender. Given the centrality of the rule of surrender to realising the humanitarian objectives of international humanitarian law, it is paramount that those involved in armed conflict are aware of what conduct constitutes an act of surrender under international humanitarian law and thus when its attendant legal obligation to cease fire is triggered. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. 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 38 provides: c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion. As such, the active hostilities framework [i.e. 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 . [T]here is little evidence that the archaic and classical Greeks enacted internationally recognised laws governing the practice of warfare: ICRC, The Law of Armed Conflict: The Conduct of Operations: Part A, June 2002, 19, https://www.icrc.org/eng/assets/files/other/law3_final.pdf. The Geneva Convention is a standard by which prisoners and civilians should be treated during a time of war. Case of Abella v Argentina (Tabala) (1997) Inter-Am Ct HR, Case No 11.137, Report No 55/97, 18 November 1997. The code of honour forbade warriors to surrender; they had to win or die, with no mercy.Footnote International Law Studies 541Google Scholar. Such, the Hebrew University of Jerusalem 2018 legally effective under international humanitarian law circumstances be treated humanely without. Para 13.2 the Third Geneva Convention states that prisoners of war should not be mistreated or abused right to medical. 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