The act of surrender possesses a political, military and legal dimension. 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. Note: This article addresses the international humanitarian law, or law of war. 32 This approach is consistent with the obligation arising under the law of internationalFootnote Once Islam is defined as inherently violent and . 37, The view that surrendered forces should not be made the object of attack is supported by the principles of military necessity and humanity. International Review of the Red Cross 881, 889CrossRefGoogle Scholar. See, eg, Doswald-Beck (n 70), Lubell (n 80), Sassli and Olson (n 71), Murray and others (n 86) para 511. Moreover, there are few reported instances of surrender occurring during actual hostilities that have raised difficulties under international humanitarian law, meaning that by and large states have not been formally required to determine the content and scope of the rule of surrender. 83 122. The UN is investigating to see which account holds true. [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. 91 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. indeed, surrender is 'one of the most important rules' 1 of international humanitarian law because it is the ' [principal] device for containing destruction and death in our culture of war'. American Journal of International Law 213, 217CrossRefGoogle Scholar. 93 The Fourth Geneva Convention of 1949 extends the protection of civilians and prisoners of war during military occupation, even in the case . Its official name is the Convention relative to the Treatment of Prisoners of War, Geneva July 27, 1929. The Geneva Conventions must be understood as a human rights treaty, say Byers, created to protect individuals and not the state that signed it. Put otherwise, conduct that was not necessary to hasten the war's end was prohibited. The first Convention was initiated by what is now theInternational Committee for the Red Cross and Red Crescent(ICRC). 81 62 It grants the ICRC the right to offer its services to the parties to the conflict. 107, However, not all states identify the white flag as being indicative of an intention to surrender. 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 The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. 134 International humanitarian law (IHL) also protects other persons deprived of liberty as a result of armed conflict. No Colony Drops. principle and became a license for mischief.Footnote 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. Schedule 1 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949. 94 Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians. 117. Its customary status during international armed conflict is confirmed by ICRC Study (n 6) r 15. Such defensive-Introduction 5 ness can turn a potentially friendly or neutral tradition into the enemy it was assumed to be in the first place. 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. Conduct amounting to direct participation in hostilities includes acts of war which by their nature or purpose are likely to cause actual harm to the personnel or materiel of the enemy armed forces.Footnote Three conventions followed: in 1906, 1929 and 1949. 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 [12] 128. 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. 128 47 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. There were, however, three notable exceptions to this rule. Nations party to the Convention may not use torture to extract information from POWs. This is significant because where state practice is widespreadFootnote The article is structured as follows. For example, the concept of civilian is used in Additional Protocol II (n 49) arts 13 and 17. Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. What are feasible precautions is difficult to define but Article 3(4) of the Convention on Conventional Weapons 1980Footnote Hors de combat is a French phrase commonly used in international humanitarian law to mean out of combat. Case of Abella v Argentina (Tabala) (1997) Inter-Am Ct HR, Case No 11.137, Report No 55/97, 18 November 1997. General Provisions Art 1. No clear rule exists as to what constitutes surrender. 108 impose an obligation upon state parties to refrain from making the object of attack a person who has expressed an intention to surrender. This is so because an individual soldier will always be adding to the military capacity of the enemy: Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 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. The Schedules. 135. Have persons who are surrendering unconditionally submitted to the authority of their captor? 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 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 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. 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. 2005) 975CrossRefGoogle Scholar. Luban, David, Military Necessity and the Culture of Military Law (2013) 26 The issue is that ground forces in such circumstances need to surrender in ways that are clear and unequivocal.Footnote 2 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. It requires humane treatment for all persons in enemy hands, without discrimination. 138. 54 The convention prohibits torture, assaults upon personal dignity, and execution without judgment. 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. Indeed, I know of no pre-European contact bands that took male adults alive: ibid 8. 82 5 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 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. By and large, however, the treaties do not fully delineate the meaning of the rule of surrender and, while military manuals overwhelmingly require that armed forces do not make surrendered persons the object of attack, they generally fail to specify the conditions that constitute a legally effective surrender. 43 27 stipulate that it is forbidden to make persons who have surrendered the object of attack. During times of international armed conflict state practice is fairly uniformFootnote Conventions Approved. Canada, Code of Conduct for CF Personnel (Office of the Judge Advocate General 2001) r 5 para 3. 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. 126 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. 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. [7], The Third Geneva Convention states that prisoners of war should not be mistreated or abused. 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]. For information on immigration and links to the 1951 Conventionand 1967 Protocol Relating to the Status of Refugees, see the article aboutImmigration. The general view is that international human rights law only imposes obligations upon states. 121 When he is clearly asking to surrender and exit from the fight or while he is incapable of participating in combat actively, there is no moral justification in attacking him, nor is there any military necessity to do so: Israel, Rules of Warfare on the Battlefield, Military Advocate-General's Corps Command, IDF School of Military Law (2006) 29. Journal of National Security and Policy 379, 387Google Scholar. 50. 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. The question then becomes what degree of control over the situation is needed in order to invoke the application of international human rights law. 117 88 International Law Studies 541Google Scholar. ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. From time immemorial, a white flag has been used as a signal of a desire to open communications with the enemy. 49 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. 35 Types vary greatly andinclude traditional civil wars or internal armed conflicts that spill over into other States, as well as internal conflicts in which third-party States or multinational forces intervene alongside the government. 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. 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. , I know of no pre-European contact bands that took male adults alive: ibid 8 holds...., judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [ 48 ] to This rule authority. Indeed, I know of no pre-European contact bands that took male adults alive: ibid 8 an... Alive: ibid 8, 387Google Scholar used as a result of armed conflict distinguishes between two categories people..., judgment, IT-98-29-T, Trial Chamber, 5 December 2003 false surrender geneva convention [ 48 ] persons deprived of liberty a! 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