Indeed, I know of no pre-European contact bands that took male adults alive: ibid 8. 51 A battlefield surrender, either by individuals or when ordered by officers, normally results in those surrendering becoming prisoners of war. 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. 139 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 113 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). 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 As civilians do not directly participate in hostilities they do not pose a threat to the military security of the opposing party. At first the principle of humanity was used more generally to re-orientate the jurisprudential basis of European societies away from notions of divine right and religious privilege towards the values of equality, tolerance and justice. In this Protocol, the fundamentals of "humane treatment" were further clarified. Twenty-six countries ratified the Conventions in the early 1990s, largely in the aftermath of the break-up of the Soviet Union, Czechoslovakia and the former Yugoslavia. The Geneva Conventions are a series of treaties on the treatment of civilians, prisoners of war (POWs) and soldiers who are otherwise rendered hors de combat (French, literally "outside the fight"), or incapable of fighting. 70 78 121 [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. 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. 38 No clear rule exists as to what constitutes surrender. The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts, Challenges in Applying Human Rights Law to Armed Conflict, Practitioners Guide to Human Rights Law in Armed Conflict, Customary International Humanitarian Law, Vol II: Practice, International Committee of the Red Cross (ICRC) and Cambridge University Press, https://www.britannica.com/topic/total-war, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e333, http://www.nytimes.com/1991/02/26/world/war-gulf-overview-iraq-orders-troops-leave-kuwait-but-us-pursues-battlefield.html?pagewanted=all, https://www.icrc.org/eng/assets/files/other/law3_final.pdf, https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-apache-insurgents-surrender. As the law of non-international armed conflict in the context of targeting is currently unclear,Footnote 79 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). Roberts further notes that [t]he issue is not that ground forces simply cannot surrender to aircraft. The offer to surrender must be clear and unconditional: US Law of War Manual (n 68) para 5.9.3.2. According to the Israeli Military Manual, it is absolutely forbidden in the strongest terms to attack such a combatant [one who has surrendered]. 10 regardless of how hopelessly outgunned and vanquished they may be.Footnote If this is the case, it becomes clear that in order to surrender it is incumbent upon such persons to perform a positive act,Footnote and that [t]he hoisting of a white flag has no other legal meaning in the law of war.Footnote The act of surrender possesses a political, military and legal dimension. 110 21 February 2018. 116 No destroying inhabited planets. Put otherwise, conduct that was not necessary to hasten the war's end was prohibited. 40 (Same book as CIVIC, Saint Nicholas Bible, Queen Elizabeth Bible except King James Epiphany only has Jewish & Christian Looking for Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales)? for this article. Another way is to ceasefire, wave a white flag and emerge from a shelter with hands raised If he is surprised, a combatant can raise his arms to indicate that he is surrendering, even though he may still be carrying weapons. 118 The code of chivalry did not govern the relations between knights and common warriors; knights, therefore, were not subject to any legal obligation to accept offers of surrender from regular combatants during times of hostilities: the desperate situation of the common warriors must be stressed because it warns us against overstating the so-called rules of war, which had begun to develop a certain code of human behaviour among noble warriors since the Middle Ages.Footnote 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. However, most agree surrender means ceasing resistance and placing oneself at the captor's discretion: US Law of Armed Conflict Deskbook (n 60) 138. Such conduct is known as perfidy. Although formally the purpose of art 4A is to delineate the criteria for determining who can be regarded as prisoners of war under the law of international armed conflict, it has become well accepted that this provision also provides the criteria for determining lawful combatancy during international armed conflict: 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 UN General Assembly, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (18 September 2013), UN Doc A/68/389, para 69. 17 65 which indicates in an absolutely clear mannerFootnote See, eg, ECtHR, McCann v United Kingdom, App no 18984/91, Judgment, 5 September 1995, paras 200205. 3, After uncovering the theoretical basis for the rule of surrender and after identifying relevant state practice in the context of this rule, the objective of this article is to fill this gap in scholarship by clarifying the type of conduct that constitutes an act of surrender under international humanitarian law. Specifically, it prohibits attacks on civilian hospitals, medical transports, etc. Has data issue: true 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. 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]. 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 At the heart of the principle of humanity was the premise that all humans qua humans possessed an inherent human dignity and that the law [is] an indispensable instrument for advancing human dignity.Footnote 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. 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 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 Virginia Journal of International Law 795, 798Google Scholar. Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno, Commentary to Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Some Concluding Remarks on the History of Surrender in Afflerbach and Strachan (n 2) 435, 442. 45 (3) Have the persons surrendering unconditionally submitted themselves to the authority of their captor? In ancient Greece Greek religious beliefs did not give rise to ethical or humanitarian limitations on the conduct of warfare.Footnote 58 81 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. Also, although surrendered persons cannot be made the object of attack, they can be the victims of incidental injury as a result of attacks against lawful targets provided that the collateral damage is not excessive in relation to the concrete and direct military advantage anticipated: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (entered into force 8 June 1977) 1125 UNTS 3 (Additional Protocol I), art 51(5)(b); Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol I: Rules (International Committee of the Red Cross (ICRC) and Cambridge University Press 2005, reprinted 2009) (ICRC Study) r 14. First, this code of chivalry applied only to interactions between recognised knights. On rare occasions the demands of military necessity converge with humanitarian considerations and prompt the law in the same direction.Footnote It is a war crime under Protocol I of the Geneva Convention. 91 It also grantsthe right to proper medical treatment and care. 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. The general view is that where [a] government could effect arrest (of individuals or groups) without being overly concerned about interference by other rebels on that operation, then it has sufficient control over the place to make human rights prevail as lex specialis: Sassli and Olson (n 71) 614. 25 2 without a legal guarantee that they will not be made the object of attack once they have laid down their weapons and submitted themselves to the authority Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits [2001] ICJ Rep 40, [205]. 86, In the context of non-international armed conflict international tribunals have at times concurred with the ICJ in the Nuclear Weapons advisory opinion and concluded that the legality of the use of force by states must be determined according to international humanitarian law criteria.Footnote Lubell (n 80) 750. 34 The exception here is 8 39 Hamdiarguedthat such detentionwas illegal under the Geneva Conventions, withoutexpress Congressional consent. 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. 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. Perhaps the thorniest issue is what positive act (or acts) are recognised by international humanitarian law as expressing an intention to surrender. The other two are whether he is "in the power of an adverse Party," or . In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. 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. Geneva Conventions, Series of four international agreements (1864, 1906, 1929, 1949) signed in Geneva, Switz., that established the humanitarian principles by which the signatory countries are to treat an enemy's military and civilian nationals in wartime.The first convention was initiated by Jean-Henri Dunant; it established that medical facilities were not to be war targets, that hospitals . 98 123 77 US Department of Defense (n 77) 644. No Colony Drops. Civilians enjoy protection from direct targeting under international humanitarian law but can be made the object of attack during such time as they directly participate in hostilities.Footnote Marsh, Jeremy and Glebe, Scott L, Time for the United States to Directly Participate (2011) 1 118 More specifically, questions arise as to the type of conduct that signals an intention to surrender. Just check all flip PDFs from the author THE MANTHAN SCHOOL. Certainly, a captor cannot demand captives to act incompatibly with international humanitarian law (such as ordering them to shoot civilians or instructing them to act in a way that is in contravention of their legal rights as prisoners of war) and, if these demands are not complied with, determine that they have engaged in a hostile act and can be thus made the object of attack. 56 71 41 51 109 It is prohibited to order that there shall be no survivors. The rule is based on common Article 3 of the Geneva Conventions, which prohibits "violence to life and person, in particular murder of all kinds" against persons placed hors de combat. As such, the active hostilities framework [i.e. 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. Retreat is not the same as surrender. 21 For instance, in practice, the white flag has come to indicate surrender if displayed by individual soldiers or a small party in the course of an action.Footnote In the Court's often quoted dictum:Footnote 108 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. Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. August 4, 2011 04:00:00 pm. 60. 2009) 22Google Scholar. 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. To that end, the Convention prohibits torture, assaults upon personal dignity, and execution without judgment(Article 3). Put another way, there were in practice in ancient Greece very few and rather weak constraints upon indulgence in extremes of military anger and hatred, not stopping short of genocide, or at least ethnocide.Footnote During the Battle for Goose Green, some Argentinean soldiers raised a white flag. Those same treaties also forbid armies from using the white flag to fake. R.11/45, 31 March 1982, UN Doc Supp No 40 (A37/40), para 13.2. 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. Accordingly, I propose a three-stage test for determining when an act of surrender is legally effective under international humanitarian law: 1. 135. International Law Studies 541Google Scholar. The various meanings of the flag were later codified in the Hague and Geneva Conventions of the 19th and 20th centuries. Failure to adhere to such demands provided they were reasonable in the sense that they did not place the surrendering forces in danger of being caught in crossfire would constitute unwillingness to submit themselves to the authority of their captor and would therefore vitiate their surrender, which means that they would remain permissible objects of attack under international humanitarian law.Footnote False or misleading statements in applications 143. ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. 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. Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2 122 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. (c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape. 15 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. 69 [8] US Army policy, for example, requires that surrendered persons should be secured and safeguarded while being evacuated from the battlefield. Yoram Dinstein, Military Necessity, Max Planck Encyclopedia of Public International Law, September 2015, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e333. The issue is that ground forces in such circumstances need to surrender in ways that are clear and unequivocal.Footnote Have persons who are surrendering unconditionally submitted to the authority of their captor? 32 A combatant force involved in an armed conflict is not obligated to offer its opponent an opportunity to surrender before carrying out an attack: US Department of Defense, Report to Congress on the Conduct of the Persian Gulf War Appendix on the Role of the Law of War (1992) 31 ILM 612, 641.
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