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 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 Convention concluded at Geneva on July 27, 1929, relative to the Treatment of Prisoners of War, have agreed as follows: Part I. 22 [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. At the level of small units, for example, once an objective has been seized, an attacking force is trained to fire on the retreating enemy to discourage or prevent a counterattack.Footnote 1981) 50910Google Scholar. 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 . The doctrine of universal jurisdiction is based on the notion that some crimes, such as genocide, crimes against humanity,torture, and war crimes, areso exceptionally gravethat they affect the fundamental interests of the international community as a whole. and (3) Have surrendered persons unconditionally submitted to the authority of their captor? 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. Thus, rather than imposing restraint, military necessity acted as a permissiveFootnote 27 64 81 677 @RealColfair Replying to @SamRamani2 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. 2009) 8687 Both Additional Protocols to the 1949 Geneva ConventionsFootnote 48 All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. As civilians do not directly participate in hostilities they do not pose a threat to the military security of the opposing party. The Geneva Conventions are a series of treatieson 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. It is a war crime under Protocol I of the Geneva Convention . 138 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. 12 Henderson, Ian, The Contemporary Law of Targeting (Martinus Nijhoff Rule 47 reads:Footnote Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits [2001] ICJ Rep 40, [205]. 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. Where domestic law does not allow for the exercise of universal jurisdiction, a Statemust introduce the necessary domestic legislative provisions before it can do so, and must actually exercise the jurisdiction, unless it hands the suspect over to another country or international tribunal. The United States, for example, claims that [w]aving a white flag technically is not a sign of surrender, but signals a desire to negotiateFootnote About the Mechanism | ; Cases; Menu 29 False surrender is a type of perfidy in the context of war. 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. Lubell (n 80) 750. 89 Its customary status during international armed conflict is confirmed by ICRC Study (n 6) r 15. A consensus was growing that, although war might still be a necessary element in international politics it should be waged, so far as possible, with humanity: Howard (n 24) 6. 79 81 Those who believe it will begin preparations to defend themselves against Islam. it is difficult to draw firm conclusions. 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. It also identified new protections and rights of civilian populations. Once the idea that warfare might have a legal and theological basis was accepted, it followed naturally that (at least in conflicts between Christian princes) considerations of law and humanity should also influence the conduct of war.Footnote 66 100 Although Article 42 relates to international armed conflicts, the rule it contains applies also to non-international armed conflicts on the basis of Common Article 3 of the four Geneva Conventions, which protects persons placed hors de combat by any cause. Have persons who are surrendering unconditionally submitted to the authority of their captor? At least for the purpose of these international legal rules, the laying down of weapons is an effective method through which to express an intention to surrender. 108 According to this principle, combatants could engage only in those measures that were indispensable for securing the ends of the war.Footnote The moral argument for this is that as long as the soldier is participating in the military effort, he knowingly risks his life. 6 GC III (n 50) art 4A. 121 46 More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [106]. [2], A white flag or handkerchief is often taken or intended as a signal of a desire to surrender, but in international law, it simply represents a desire for a parley that may or may not result in a formal surrender. 1 Sandoz, Swinarski and Zimmermann (n 1) paras 162122. 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). Sandoz, Swinarski and Zimmermann (n 1) 487. It grants the ICRC the right to offer its services to the parties to the conflict. In the context of war, perfidy is a form of deception in which one side promises to act in good faith (such as by raising a flag of truce) with the intention of breaking that promise once the unsuspecting enemy is exposed (such as by coming out of cover to take the "surrendering" prisoners into custody).. Perfidy constitutes a breach of the laws of war and so is a war crime, as it degrades the . 45 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). 132 (footnotes omitted). It requires humane treatment for all persons in enemy hands, without discrimination. 118 7 2 2016) 4951 Ober, Josiah, Classical Greek Times in Howard, Michael, Andreopoulos, George J and Shulman, Mark R (eds), The Laws of War: Constraints on Warfare in the Western World (Yale University Press, 1994) 12, 12Google Scholar. 52 Last updated in June of 2017 by Stephanie Jurkowski. As Oeter explains, the obligation to accept valid offers of surrender constitutes in essence a logical expression of the principle that the legal use of military violence is strictly limited to what is required by military necessity; clearly there is no necessity to kill persons hors de combat: Stefan Oeter, Methods and Means of Combat in Fleck (n 19) 115, 18687. Additional Protocol II (n 49) art 13(1). 43 Render date: 2023-01-18T22:59:46.379Z 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 . 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. 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. Its customary status during non-international armed conflict is confirmed by ICRC Study (n 6) r 15. Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? Published online by Cambridge University Press: In practice, it [the rule of surrender] is one of the most important rules of the Protocol [Additional Protocol I (n 6 below)]: 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 This approach is consistent with the obligation arising under the law of internationalFootnote The act of surrender, therefore, is a continuing obligation insofar as the persons surrendering must continually comply with the demands of their captor. State practice points towards a broad reading of the notion of what is a hostile act. It requires that the wounded, sick and shipwrecked be collected and cared for. Put differently, there is a pressing military need to target them directly. 59, Combatants who wish to surrender must act purposively in order to repudiate the assumption that they represent a threat to military security. 36 Cte d'Ivoire, Droit de la guerre, Manuel d'instruction, Ministre de la Dfense, Forces Armes Nationales (2007) 4647. Tieya, Wang and Min, Wei, International Law (Falu Chubanshe ICRC Study (n 6) r 47. Law and History Review 469, 47677CrossRefGoogle Scholar. This Convention protects wounded and infirm soldiers and medical personnel who are not taking active part in hostility against a Party. 70 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. General de Brigada Pablo Duarte, Secretara de Estado de las Fuerzas Armadas (1980) 67. Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. That the onus is upon those wishing to surrender to indicate unambiguously that they no longer intend to take a direct part in hostilities explains why international humanitarian law does not impose an obligation upon an opposing force to first offer its enemy the opportunity to surrender before making them the object of an attack,Footnote 51 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 8 83 However, because military necessity was defined so broadly (securing the ends of the war) it essentially became a doctrine of deference to military judgment about what is really militarily necessary.Footnote 88 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. 26 It is recognized by military professionals that a retreating force remains dangerous. the consequence would be that where a situation is under the control of a stateFootnote 69 131 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. The emergence of knights and, in particular, the code of chivalry that governed their interactions had a considerable impact upon the legal regulation of armed conflict.Footnote 119 10, A similar story can be told in relation to the regulation of armed conflict, and thus the regulation of surrender during ancient times. 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. 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 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 International Review of the Red Cross 737, 738CrossRefGoogle Scholar. 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. There is no obligation on refugees to claim asylum in the first safe country they reach. Virginia Journal of International Law 795, 798Google Scholar. GENEVA CONVENTION RELATIVE TO THE PROTECTION OF CIVILIAN PERSONS IN TIME OF WAR OF 12 AUGUST 1949 PART I GENERAL PROVISIONS Article 1. 91 Finally, new rules regarding the treatment of the deceased, cultural artifacts, and dangerous targets (such as dams and nuclear installations) were produced. Is specially recruited locally or abroad, 2. . Indeed, I know of no pre-European contact bands that took male adults alive: ibid 8. 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. 45 https://doi.org/10.1017/S0021223717000279, Commentary to Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Going Down with Flying Colours: Naval Surrender from Elizabethan to Our Own Times, How Fighting Ends: A History of Surrender, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, Development and Principles of International Humanitarian Law, The Laws of War: Constraints on Warfare in the Western World, Saint Augustine and the Theory of Just War, The Handbook of International Humanitarian Law, Chivalry Without a Horse: Military Honour and the Modern Law of Armed Conflict, The Law of Armed Conflict: Historical and Contemporary Perspectives, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War, Military Necessity and the Culture of Military Law, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance, The Conduct of Hostilities under the Law of International Armed Conflict, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, On Target: Precision and Balance in the Contemporary Law of Targeting, Time for the United States to Directly Participate, Virginia Journal of International Law Online. Schmitt, Michael N and Widmar, Eric W, On Target: Precision and Balance in the Contemporary Law of Targeting (2014) 7 impose an obligation upon state parties to refrain from making the object of attack a person who has expressed an intention to surrender. The other two are whether he is "in the power of an adverse Party," or . The singular term "Geneva Convention" is often used to refer to the agreement of 1949. 130 As Sassli and Olson explain, case law in this area is clearly contradictoryFootnote 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). All in all, the point is that even if an offer of surrender is validly extended under international humanitarian law, if that offer cannot reasonably be discerned in the circumstances then, from the perspective of the opposing force, the threat represented by the enemy remains and the principle of military necessity continues to justify their direct targeting. Initially, the Manual explains that:Footnote Its full respect is required. Other states similarly reject the contention that the white flag indicates an intention to surrender. 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 137 [A]ll persons who are neither members of the armed forces of a party to the conflict nor participants in a leve en masse are civilians: Additional Protocol I (n 6) art 50(1). 35 (c) anyone who clearly expresses an intention to surrender; provided he or she abstains from any hostile act and does not attempt to escape. See, eg, Human Rights Committee, Suarez de Guerrero (n 82). 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. The ICRChas a special role given by the Geneva Conventions: it handles, and is granted access to, the wounded, sick, and POWs. Indeed, surrender is one of the most important rulesFootnote 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 . Even more so forbidding the use of superweapons on or near civilian populations. 136 The effect was gradually to transform the law of war into an international humanitarian law; thus our modern international humanitarian law being a corpus of law predicated upon the principles of military necessity and humanity was born. The law of war obligates a party to a conflict to accept the surrender of enemy personnel: ibid. 19 30 Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 34 Division 270Slavery, sexual servitude and deceptive recruiting 262. r.j.buchan@sheffield.ac.uk. 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. It is therefore concerning that a number of military manuals erroneously identify the white flag as a sign of surrender under international humanitarian law. Mattox, John Mark, Saint Augustine and the Theory of Just War (Continuum 65 The ICRC's Interpretive Guidance provides a fuller discussion of when a person can be regarded as directly participating in hostilities: Melzer (n 57) 4164. 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. Upload your PDF on PubHTML5 and create a flip PDF like Popular Stories of Ancient Egypt . 5 107, However, not all states identify the white flag as being indicative of an intention to surrender. However, the phraseology of these agreements means that civilians necessarily fall into a residual category of anyone who is not a fighter. 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 14 The Geneva Convention (1929) was signed at Geneva, July 27, 1929. Surrender, in military terms, is the relinquishment of control over territory, combatants, fortifications, ships or armament to another power. 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. The First Geneva Convention was presided over by Swiss general Guillaume Henri Dufour on August 22, 1864. Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 261. The signing Nations agreed to further restrictions on the treatment of "protected persons" according to the original Conventions, and clarification of the terms used in the Conventions was introduced. 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. [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. 102 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 For a more detailed discussion of decisions of UN human rights bodies that have applied international human rights law in determining the legality of the use of force by states during non-international armed conflicts see Sassli and Olson (n 71) 61112. 21 February 2018. Additionally, the rights of interned persons were specifically enumerated, providing protections for those charged with crimes during wartime. 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. Paul Cartledge, Surrender in Ancient Greece in Afflerbach and Strachan (n 2) 15, 21. Unlike international armed conflicts, the law of non-international armed conflict does not expressly define the concept of civilian notwithstanding the fact that treaty law applicable to non-international armed conflict uses the term civilian on a number of occasions.Footnote 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. 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. 51 The first convention covers soldiers wounded on the battlefield, the second covers sailors wounded and. 3. 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: It is a war crime under Protocol I of the Geneva Convention. Section 4 provides some conclusions. Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). 32 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 The Conventions apply to all cases ofdeclared warbetween signatory nations. [citation needed] Flags and ensigns are hauled down or furled, and ships' colors are struck. No weapons that could screw around with the laws of physics negatively . 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 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. ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. This convention produced a treaty designed to protect wounded and sick soldiers during wartime. [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. See generally 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. No destroying inhabited planets. It also included the prohibition of scientific experiments on POWs in response to the torture exacted on prisoners by German and Japanese doctors. 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 of their enemy, there would be no incentive for those persons engaged in hostilities to surrender and fights to the death would invariably ensue, thereby prolonging armed conflict and fuelling unnecessary violence and suffering. As the quotations from the above military manuals reveal, the white flag does occupy an important role in international humanitarian law. 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). [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. 78 53 [6] Normally, a belligerent will agree to surrender unconditionally only if completely incapable of continuing hostilities. stipulate that it is forbidden to make persons who have surrendered the object of attack. In the Court's often quoted dictum:Footnote It also grantsthe right to proper medical treatment and care. 7 Retreat is not the same as surrender. 23 86 Or life-sustaining stars . 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. According to Article 47 of Additional Protocol I of the Geneva convention a mercenary is a person who: 1. When the first great gathering to inaugurate the English League of Nations Union met in Westminster, people were turned away from the dangerously packed hall, not by the hundred but by the thousand. This incident emphasizes the rule that the white flag indicates merely a desire to negotiate, and its hoister has the burden to come forward. All persons protected under these conventions must be given shelter and cared for by the party to the conflict that holds power over them. Combatants include those persons who are incorporated into the regular armed forces of a state by domestic law. It is a war crime under Protocol I of the Geneva Convention. Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 CrossRefGoogle Scholar. ) and, on the other hand, civilians.Footnote The code of honour forbade warriors to surrender; they had to win or die, with no mercy.Footnote The Brussels Manual of 1874, although never attaining the status of treaty law, also precluded the refusal of quarter.Footnote By ICRC Study ( n 2 ) 15, 21 general PROVISIONS Article 1 a. Into the regular armed Forces of a state by domestic law Stories of false surrender geneva convention Egypt general PROVISIONS Article 1 those! Were specifically enumerated, providing protections for those charged with crimes during wartime who: 1 over.... The wounded, sick and shipwrecked be collected and cared for a sign of under... 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