Virginia Journal of International Law 795, 798Google Scholar. 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 A person hors de combat is: (a) anyone who is in the power of an adverse party; (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or. (3) Have the persons surrendering unconditionally submitted themselves to the authority of their captor? When is Surrender Effective under International Humanitarian Law? 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. 11 This is the original sense of applicability, which predates the 1949 version. It is inconvertible that under international humanitarian law it is unlawful to directly target an enemy who has surrendered. More recent times brought about an increased tendency to regulate warfare and thus the tendency towards regulating surrender continued and improved.Footnote In short, while international humanitarian law permits parties to an armed conflict to attack (and kill) enemies, even where they are not engaging in threatening behaviour (and assuming they are not hors de combat), international human rights law permits a state to use force only where it is necessary and proportionate in the circumstances prevailing at the time.Footnote 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 Adopted in 2005 to add another emblem, the "red crystal," to the list of emblems used to identify neutral humanitarian aide workers. 12 Share and download Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales) for free. 85 The moral argument for this is that as long as the soldier is participating in the military effort, he knowingly risks his life. 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. Scheffer, "Towards a Modern Doctrine," p. 289; United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948), Article I. Julie Mertus goes further: "If the target state is party to any of the relevant human rights conventions, or if the human right can be said to be customary international law applicable to . The Argentine conduct was arguably treachery if those raising the white flag killed the British soldiers, but not if other Argentines fired unaware of the white flag. 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. It has a political dimension in the sense that an act of surrender indicates that a surrendering party has been defeated and the opposing force has been victorious. 27 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 Definition. As the International Criminal Tribunal for the Former Yugoslavia (ICTY) would later explain, [t]he essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of human dignity in every person The general principle of respect for human dignity is the very raison dtre of international humanitarian law and human rights law: ICTY, Prosecutor v Furundzija, Judgment, IT-95-17/I-T, Trial Chamber II, 10 December 1998, [183]. 61 Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). Doswald-Beck, Louise, The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? (2006) 88 19 The upshot of this is that non-state actors such as organised armed groups that are party to a non-international armed conflict cannot be the bearer of obligations under international human rights law: Philip Alston, The Not-a-Cat Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors? in Philip Alston (ed), Non-State Actors and Human Rights (Oxford University Press 2005) 3. 2013) 1Google Scholar, para 109. armed conflict that, when launching an attack, combatants and fighters must take all feasible precautions to avoid or minimise damage to non-military objects such as civilians and those hors de combat.Footnote In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. On rare occasions the demands of military necessity converge with humanitarian considerations and prompt the law in the same direction.Footnote War crimes are defined as acts which violate the laws and customs of war (established by the Hague Conventions of 1899 and 1907), or acts that are grave breaches of the Geneva Conventions and Additional Protocol I and Additional Protocol II. The development of the Geneva Conventions was closely associated with the Red Cross, whose founder, Henri Dunant, initiated international negotiations . 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. 24 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. 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 However, the phraseology of these agreements means that civilians necessarily fall into a residual category of anyone who is not a fighter. 01 Jan 2023 20:41:32 90, In normative terms, commentators have increasingly argued that whenever a state has enough control over a particular situation to enable it to detain individuals, then such an attempt must be made before force can be used, and non-lethal force must be favoured if possible.Footnote The ICRC Study is not a source of international law but instead intends to capture and delineate customary rules of international humanitarian law applicable to international and non-international armed conflict: ibid xxiv. It defines their rights and sets down detailed rules for their treatment and eventual release. 91 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 The contribution of this article has been to propose a tripartite test for determining the type of conduct that constitutes an act of surrender and thus imposes a legal obligation upon opposing forces to cease fire: (1) Have surrendering persons engaged in positive acts that clearly indicate that they are outside the theatre of war and therefore no longer represent a threat to the opposing force? It does not necessarily indicate as it is often believed an intention to surrender.Footnote By way of illustration, during the Falklands Conflict the Director of the United Kingdom (UK) Army Legal Services stated that where enemy combatants had surrendered but UK armed forces continued to come under fire from other enemy combatants, UK forces were entitled to remain in their positions and demand that surrendered persons advance forward. 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. [3] Normally, a surrender will involve the handing over of weapons; the commanding officer of a surrendering force symbolically offers his sword to the victorious commander. 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 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 54 81 In naval warfare, the traditional sign of surrender is to strike the flag: Program on Humanitarian Policy and Conflict Research, 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. 101 66 118 124 1985) 6Google Scholar. International Review of the Red Cross 599, 606CrossRefGoogle Scholar. Case of Abella v Argentina (Tabala) (1997) Inter-Am Ct HR, Case No 11.137, Report No 55/97, 18 November 1997. 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. 117 99. This being said, under international humanitarian law persons are regarded as hors de combat and thus immune from attack where they are in the power of the adverse party: Additional Protocol I (n 6) art 41(2)(a); ICRC Study (n 6) r 47. 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. who possess a continuous combat function.Footnote The general view is that international human rights law only imposes obligations upon states. Seven new ratifications since 2000 have brought the total number of States Party to 194, making the Geneva Conventions universally applicable. Henderson, Ian, The Contemporary Law of Targeting (Martinus Nijhoff In 1949, after World War II, two new Conventions were added, and the Geneva Conventions entered into force on 21 October 1950. US Law of Armed Conflict Deskbook (n 60) 167. 10, A similar story can be told in relation to the regulation of armed conflict, and thus the regulation of surrender during ancient times. Under the first and second Geneva Conventions of 1949, the belligerents must protect the sick, wounded and shipwrecked as well as medical personnel, ambulances and hospitals. Yet, the circumstances in which international human rights law is operative during international and non-international armed conflict is far from clear and this is particularly so in relation to the law of targeting.Footnote In sum, persons who demonstrate an intent to surrender create a rebuttable presumption that they are hors de combat and no longer a threat to the enemy. 59 121 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. 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 It requires that the wounded, sick and shipwrecked be collected and cared for. US Corporations' September 30th fiscal payment deadline Sep 30, 2023 USA Each year around that time, as the payment deadline approaches, we see all sorts of maneuvers. [5] Over time, generally accepted laws and customs of war have been developed for such a situation, most of which are laid out in the Hague Convention of 1907 and the Geneva Conventions. 134 They shall in all circumstances be treated humanely, without any adverse distinction. The convention prohibits torture, assaults upon personal dignity, and execution without judgment. Project of an International Declaration concerning the Laws and Customs of War 1874, adopted by the Conference of Brussels, 27 August 1874 (the Brussels Manual), art 13(d). Three conventions followed: in 1906, 1929 and 1949. Canada, Code of Conduct for CF Personnel (Office of the Judge Advocate General 2001) r 5 para 3. in other words, surrendered persons must place themselves at the captor's discretion.Footnote 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. The ICRChas a special role given by the Geneva Conventions: it handles, and is granted access to, the wounded, sick, and POWs. 35 Military headquarters subsequently communicated to the pilots the legal advice of a US military lawyer: Lawyer states they cannot surrender to aircraft and are still valid targets.Footnote They got hit by a concussion from a grenade and the Russian were in Ukrainian uniforms which is a war crime the Ukrainians say friendly for a reason. "useRatesEcommerce": false Persons who attempt to escape or commit a hostile act which means that they fail to submit to the authority of their opponent indicate that they are resuming participation in hostilities. For the purpose of this Statute, 'war crimes' means: Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under . indicating that such conduct achieves sufficient support among states to amount to a legally recognisable act of surrender under relevant treaty and customary international humanitarian law. [9], While not a formal military law, the Code of the US Fighting Force disallows surrender unless "all reasonable means of resistance [are] exhausted and certain death the only alternative": the Code states, "I will never surrender of my own free will. The peacemaking symbolism of the white flag is now enshrined in the Geneva Convention, though it's rarely mentioned in national flag codes. 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 87 5 American Journal of International Law 239CrossRefGoogle Scholar. For a discussion of the legal framework relating to parlementaires see The article is structured as follows. Perhaps the thorniest issue is what positive act (or acts) are recognised by international humanitarian law as expressing an intention to surrender. 99 Last updated in June of 2017 by Stephanie Jurkowski. Feature Flags: { CrossRefGoogle Scholar. Every Statebound by the treaties is under the legal obligation to search for and prosecute those in its territory suspected of committing such crimes, regardless of the nationality of the suspect or victim, or of the place where the act was allegedly committed. The First Geneva Convention was presided over by Swiss general Guillaume Henri Dufour on August 22, 1864. 4. 137 Have persons who are attempting to surrender engaged in a positive act which clearly indicates that they no longer intend to directly participate in hostilities? 22 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. ICRC Study (n 6) r 47. Moreover, one would expect to find the answers to these questions in the military manuals that states produce in order to guide the conduct of their armed forces during times of armed conflict and to streamline their conduct in conformity with international humanitarian law. Accounts of false surrender can be found relatively frequently throughout history. This article does not consider when acts of surrender are legally effective during naval and aerial warfare, to which different rules apply.Footnote Source. The ICC Statute goes farther than the Fourth Geneva Convention. This incident emphasizes the rule that the white flag indicates merely a desire to negotiate, and its hoister has the burden to come forward. 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. 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 . 15 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 120 [citation needed] Flags and ensigns are hauled down or furled, and ships' colors are struck. Conventions Approved. 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. He may signal to you with a white flag, by emerging from his position with arms raised or yelling to ceasefire.Footnote Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, paras 78, 79. Fighters include those persons who are formally incorporated into a state's armed forces via domestic law and those members of an organised armed group who belong to a state that is party to the armed conflict and who possess a continuous combat function.Footnote 29 Even more so forbidding the use of superweapons on or near civilian populations. 109 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 Where a valid offer of surrender is communicated to an opponent, there is a legal obligation upon the opponent to accept that offer and to refrain from making surrendered persons the object of attack. 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. Section 2 situates surrender within its broader historical and theoretical context in order to provide a better understanding of the development of the rule of surrender within conventional and customary international humanitarian law as well as the function of the rule of surrender during armed conflict. 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. Those same treaties also forbid armies from using the white flag to fake. 122 This is significant because where state practice is widespreadFootnote In the air, it is generally accepted that a crew wishing to indicate their intention to cease combat, should do so by waggling the wings while opening the cockpit: Sandoz, Swinarski and Zimmermann (n 1) 487. US Law of War Manual (n 68) para 5.9.3.2. Specifically, it prohibits attacks on civilian hospitals, medical transports, etc. 138 As the law of non-international armed conflict in the context of targeting is currently unclear,Footnote Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians. It also included the prohibition of scientific experiments on POWs in response to the torture exacted on prisoners by German and Japanese doctors. Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. 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. [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. Common Article 3 (n 50); Additional Protocol II (n 49) art 1. 52 US Department of Defense (n 77) 641. As such, the active hostilities framework [i.e. Furthermore, the Rome Statute establishing the International Criminal Court (ICC Statute) determines that in times of internationalFootnote Published online by Cambridge University Press: Note: This article addresses the international humanitarian law, or law of war. 135 Incidentally, under international humanitarian law (including the law of international and non-international armed conflict (see Additional Protocol I (n 6) art 37(1) and ICRC Study (n 6) r 65) and international criminal law (during both international and non-international armed conflict see respectively ICC Statute (n 51) art 8(2)(b)(xi) and 8(2)(e)(ix)) it is unlawful to invite the confidence of adversaries with the purpose of injuring or capturing them. Resolving the question of the type of conduct that expresses an intention to surrender would therefore produce the collateral benefit of also clarifying the rule relating to perfidy. Additional Protocol I (n 6); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II). Total loading time: 0.958 If they did take prisoners it was only young women or some women and children. Initially, the Manual explains that:Footnote The conventional view is that where civilians repeatedly directly participate in hostilities they retain their immunity from direct targeting even during intermissions in direct participation.Footnote 32 102 It is therefore concerning that a number of military manuals erroneously identify the white flag as a sign of surrender under international humanitarian law. Rule 47 reads:Footnote principle and became a license for mischief.Footnote Retreat is not the same as surrender. and IV (1907)Footnote The Geneva Convention of 1949 was negotiated after World War II to update the first three treaties and add a fourth to protect civilians. Henderson (n 55) 88 fn 64. Just check all flip PDFs from the author THE MANTHAN SCHOOL. About the Mechanism | ; Cases; Menu 2 122. 88 Another important question is whether combatants are required to offer vanquished forces the opportunity to surrender before direct targeting can commence? 40 CrossRefGoogle Scholar. ) and, on the other hand, civilians.Footnote 120, Surrender is a legal exchange constituted by a valid offer and its subsequent acceptance.Footnote 115, One final question remains. Its official name is the Convention relative to the Treatment of Prisoners of War, Geneva July 27, 1929. [12] This convention produced a treaty designed to protect wounded and sick soldiers during wartime. [6] Normally, a belligerent will agree to surrender unconditionally only if completely incapable of continuing hostilities. 133 It is a war crime under Protocol I of the Geneva Convention. For example, the concept of civilian is used in Additional Protocol II (n 49) arts 13 and 17. Paul Cartledge, Surrender in Ancient Greece in Afflerbach and Strachan (n 2) 15, 21. 23 regardless of how hopelessly outgunned and vanquished they may be.Footnote For the first time we witnessed an intellectual appraisal of the conduct of hostilities, the recognition that warfare needed to be subject to limitations, and that these limitations could be achieved through the imposition of legal regulation. Hilaire McCoubrey and Nigel D White, International Humanitarian Law: The Regulation of Armed Conflict (Dartmouth 1992) 227. 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. Jewish & Christian scriptures, science facts, safety & reminder tips, cuisine, sports, books, art, music, movies, TV. 21 128. 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 The Geneva League of Nations is a start, I admit, but it is a start in the . and reveals that targeting is to be conducted according to the more permissive standards set by international humanitarian law rather than the more restrictive standards imposed by international human rights law.Footnote 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. See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31, art 3; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85, art 3; Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III), art 3; GC IV (n 6) art 3 (Common Article 3). With regard to non-international armed conflict, Article 4 of Additional Protocol II delineates a number of fundamental guarantees and specifically states: All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honor and convictions and religious practices. The Geneva Conventions providefor universal jurisdiction, as opposed to a more traditional (and limited) territorial jurisdictionthat was designed torespect thesovereignty of States over their citizens. 97 102 That it is only those members of an organised armed group possessing a continuous combat function to directly participate in hostilities who are to be regarded as combatants derives from the ICRC's Interpretive Guidance, ibid 25. This agreement extended the protections described in the first Convention to shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships. Is specially recruited locally or abroad, 2. . 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 No destroying inhabited planets. 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