One of the treaties created during the 1949 Convention, this defined "Prisoner of War,"and accorded such prisoners proper and humane treatment as specified by the first Convention. If the approach described above gains traction within state practice (as it has done within academic literature),Footnote The first convention covers soldiers wounded on the battlefield, the second covers sailors wounded and. 60 Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 The rationale underlying this rule can be explained on the basis that where it is discernible that persons have parachuted from an aircraft in distress and are not engaging in hostile acts, this is regarded as a form of positive conduct that signals that they no longer represent a threat to military security and thus there is no military necessity to directly target them. and (3) Have surrendered persons unconditionally submitted to the authority of their captor? Statute of the International Court of Justice (n 41) art 38(1)(b). If in command, I will never surrender the members of my command while they still have the means to resist". 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. Those who believe it will begin preparations to defend themselves against Islam. 47 Law and History Review 469, 47677CrossRefGoogle Scholar. 128 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 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. This issue is relevant because during the First Gulf War, American forces overran Iraqi troops near the KuwaitIraq border and American forces continued to directly target Iraqi forces even though they were in clear retreat. The convention prohibits torture, assaults upon personal dignity, and execution without judgment. Is retreat tantamount to surrender? 53 These four treaties have been adopted by all 194 nations of the world. It is inconvertible that under international humanitarian law it is unlawful to directly target an enemy who has surrendered. 2005) 975CrossRefGoogle Scholar. While the 1949 Geneva Conventions have been universally ratified, the Additional Protocols have not. as they directly participate in hostilities, and this includes the period during which the civilian is preparing to engage in conduct amounting to direct participation, actually engages in hostilities, and in the immediate aftermath of the hostile act being perpetrated.Footnote 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. [7], The Third Geneva Convention states that prisoners of war should not be mistreated or abused. 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 Such environments were generally lawless, meaning that the decision to offer surrender was a risky and dangerous option for combatants to take.Footnote Geneva, 12 August 1949", "FM 19-40 Enemy pisoners of war and civilian internees", "Code of Conduct for Members of the United States Armed Forces", "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977", Tom Barry, Guerilla Days in Ireland, Anvil Books Ltd, FP 1949, 1981, https://en.wikipedia.org/w/index.php?title=Surrender_(military)&oldid=1118630279, This page was last edited on 28 October 2022, at 01:42. They organized a provisional govern- ment for service until a permanent one might be established by the people. 2016)Google Scholar para 5.06. See also Hague Regulations IV (n 48) art 23(c): It is forbidden [t]o kill or wound an enemy who has surrendered at discretion. 88 130 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. GC III (n 50) art 4A. 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. 70 [6] Normally, a belligerent will agree to surrender unconditionally only if completely incapable of continuing hostilities. Christian knights were therefore relieved of any obligation to accept offers of surrender by non-Christian combatants.Footnote 34 Accounts of false surrender can be found relatively frequently throughout history. Hague Convention (II) with respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 4 September 1900) 26 Martens Nouveau Recueil (ser 2) 949. 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 International Review of the Red Cross 881, 889CrossRefGoogle Scholar. 14 During the First Gulf War, US tanks equipped with earthmoving plough blades breached Iraqi defences and then turned and filled in trenches, entombing Iraqi soldiers who had sought to surrender. Liivoja, Rain, Chivalry Without a Horse: Military Honour and the Modern Law of Armed Conflict in Liivoja, Rain and Saumets, Andres (eds), The Law of Armed Conflict: Historical and Contemporary Perspectives (Tartu University Press His opponent either may not see his surrender, may not recognize his actions as an attempt to surrender in the heat and confusion of battle, or may find it difficult (if not impossible) to halt an onrushing assault to accept a soldier's last minute effort to surrender. 116 The principle of military necessity therefore failed to provide an effective mechanism to quell the savagery and brutality associated with previous armed conflicts. Luban, David, Military Necessity and the Culture of Military Law (2013) 26 49 Such persons are known as parlementaires. 77 Rome Statute establishing the International Criminal Court (entered into force 3 September 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(vi). This is the original sense of applicability, which predates the 1949 version. 115, One final question remains. Other emblems were later recognized, and the Geneva Conventions of 1949, the main topic of this article, confirmed them all. 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 27 65 The Geneva Conventions and the Death of Osama Bin Laden. While the notion of attempting to escape is relatively self-explanatory, what constitutes a hostile act is far from clear. [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). 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. 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. 71 More recent times brought about an increased tendency to regulate warfare and thus the tendency towards regulating surrender continued and improved.Footnote Commenting upon the incident, Roberts correctly notes that while [s]urrender is not always a simple matter, the legal advice of the US military lawyer that ground forces cannot surrender to aircraft, and thus offers of surrender in such circumstances can be permissibly refused was dogmatic and wrong.Footnote [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. 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 79 Last updates June 10, 2019 by Krystyna Blokhina, International Committee for the Red Cross and Red Crescent, 1952 Commentary on the Geneva Conventions, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of 12 August 1949, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of 12 August 1949, Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949, Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, of 8 June 1977, Reference Guide to the Geneva Conventions, List of Nations Ratifying or are Otherwise Party to the Geneva Conventions and/or Protocols, ICL Practice Relating to Rule 157, Jurisdiction over War Crimes, Category: International, Transnational, and Comparative Law, Geneva Conventions and their additional protocols, Disputes arising under the Conventions or the Protocolsare settled by courts of the member nations (Article 49 of Convention I) or by international. 72 12 [T]here is little evidence that the archaic and classical Greeks enacted internationally recognised laws governing the practice of warfare: Sandoz, Swinarski and Zimmermann (n 1) 487. 103 17 The US Law of Armed Conflict Deskbook also rejects the use of the white flag as being declarative of surrender, and discusses the use of the white flag in the context of the 1982 Falklands Conflict:Footnote Russian Defense Ministry spokesman Maj. Gen. Igor Konashenkov declined Sunday to give numbers on how many Russian troops had been killed or captured but said more Ukrainians than Russians had been. 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. 70 United Kingdom, Joint Service Manual of the Law of Armed Conflict (2004) paras 10.510.5.1. 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 124 110. 87 135. 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. Virginia Journal of International Law Online 1, 20Google Scholar. It also grants the right to proper medical treatment and care. During the American Civil War the US government charged the renowned American-German jurist Francis Lieber to draft a document which contained the basic principles and accepted rules of war on land to regulate the conduct of the Union's military forces during its armed conflict with the Confederate army. 20 117. which indicates in an absolutely clear mannerFootnote 75 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. Sandoz, Swinarski and Zimmermann (n 1) paras 162122. If international human rights law were to govern the manner in which a party to an armed conflict targets its enemy this would have a profound impact upon whether and to what extent force can be used permissibly. Paul Cartledge, Surrender in Ancient Greece in Afflerbach and Strachan (n 2) 15, 21. This has been consistently interpreted as imposing a treaty obligation upon parties to this Protocol to accept valid offers of surrender.Footnote 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. 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. J. Cadoux/ICRC Archives. 16 63 Surrender, in military terms, is the relinquishment of control over territory, combatants, fortifications, ships or armament to another power. 136 95 It is well established that feigning surrender in order to invite the confidence of an enemy is a perfidious act. Where conflict occurs the principles of military necessity and humanity have to be delicately balanced, with rules being produced that reflect a dialectical compromise between these two opposing forces.Footnote It grants the ICRC the right to offer its services to the parties to the conflict. 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. 83 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. In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. 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. R.11/45, 31 March 1982, UN Doc Supp No 40 (A37/40), para 13.2. During the Age of Enlightenment and under the tutelage of European philosophers, the principle of humanity emerged as a counterweight to the principle of military necessity.Footnote The ICRC insists that customary international law also imposes an obligation to refrain from targeting those who have surrendered, yet Rule 47 of the ICRC Study provides no further guidance on what conduct constitutes a legally effective surrender, stating merely that a person is immune from attack where he or she expresses an intention to surrender. Henderson (n 55) 88 fn 64. In naval warfare, the traditional sign of surrender is to strike the flag: Program on Humanitarian Policy and Conflict Research, 48 56 93 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. [The opponent] may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon an attempt to surrender in the midst of a hard-fought battle is neither easily communicated nor received. 104 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. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. 15 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 It is a war crime under Protocol I of the Geneva Convention. [11] This prohibition is repeated in Additional Protocol II, which adds that "it is prohibited to order that there shall be no survivors". 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 Thus, rather than imposing restraint, military necessity acted as a permissiveFootnote 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 From a survey of military manuals I have revealed that the laying down of weapons and the raising of hands is a widely accepted method of indicating such an intention under both conventional and customary international humanitarian law. However, where persons parachute from an aircraft and are not in distress, or are in distress but nevertheless engage in a hostile act, a threat to military security is present and they may be made the object of attack. Thus, persons who refuse to obey demands to kneel or to lie on the ground, place their hands behind their back, remain silent, stand still and so on, do not submit to the authority of their opponent and do not surrender for the purpose of international humanitarian law. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (as amended 21 December 2001) (entered into force 2 December 1983) 1342 UNTS 137. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. Source. 38 The US Law of War Manual explains that [a]ll hostile acts or resistance, or manifestations of hostile intent, including efforts to escape or to destroy items, documents, or equipment to prevent their capture by the enemy, vitiate an otherwise legally effective surrender: US Law of War Manual (n 68) para 5.9.3.2. In the Armed Activities case the ICJ held that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration: Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), Judgment [2005] ICJ Rep 168, [216]. 83 1 It is the duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including inter alia the designation and acceptance of those Powers, in accordance with the following paragraphs. 54 It requires that the wounded, sick and shipwrecked be collected and cared for. 20 Edited by: . [A] soldier who fights to the very last possible moment assumes certain risks. Meron, Theodor, The Humanization of Humanitarian Law (2000) 94 Many bands took no prisoners, not even children or young women. 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. 35 100 1987) 480Google Scholar. Indeed, it was commonplace that combatants who had surrendered were slain or, at a minimum, their lives spared only to be forced into slavery.Footnote No Nuclear Weapons . St Augustine's notion of just war implied that resort to war was subject to limitations and that the decision to declare war required justification.Footnote William Fenrick, Specific Methods of Warfare in Elizabeth Wilmshurst and Susan Breau (eds), ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2007) 141. 77 Traditionally, a surrender ceremony was accompanied by the honors of war. 5 Where they directly participate in hostilities they have the legal capacity to surrender and, in order to do so, they must engage in a positive act that clearly demonstrates their intention that they no longer wish to participate in hostilities. Sandoz, Swinarski and Zimmermann (n 1) 48687. Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). 72 Carnahan, Burrus M, Lincoln, Lieber and the Laws of War (1998) 92 Such conduct is known as perfidy. The convention finished its work on February 8, 1935 and submitted it to the President of the United States for certification that its provisions complied with the Philippine Independence Act. Surrender involves an offer by the surrendering party (a unit or an individual solider) and an ability to accept on the part of his opponent: US Department of Defense (n 77) 641. Heavily influenced by the dictates of Christianity and especially the writings of the leading teachers in the Catholic Church, it was during the Medieval Ages that concerted attempts were made to construct a detailed regulatory framework to govern armed conflict and mitigate the horrors of war. 132 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 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. Cte d'Ivoire, Droit de la guerre, Manuel d'instruction, Ministre de la Dfense, Forces Armes Nationales (2007) 4647. Despite being signatory to the Conventions, there are some notable and often-criticized U.S. cases involving conduct that would otherwise be prohibited by the Conventions, such as Hamdi v. Rumsfield(2004). (footnotes omitted). Rule 47 reads:Footnote Its customary status during international armed conflict is confirmed by ICRC Study (n 6) r 15. 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 . 22 It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through"special agreements.". 119 Has data issue: true The law of international armed conflict defines civilians in negative terms as those persons who do not qualify as combatants.Footnote 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 Both Additional Protocols to the 1949 Geneva ConventionsFootnote 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. US Department of Defense (n 77) 644. 63 It also grantsthe right to proper medical treatment and care. The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. Pictet, Jean, Development and Principles of International Humanitarian Law (Martinus Nijhoff 15 40 103 Vienna Convention on the Law of Treaties (entered into force 28 January 1980) 1155 UNTS 331, art 31(3)(b). Put otherwise, conduct that was not necessary to hasten the war's end was prohibited. Article 23(c) of Hague Convention IVFootnote Indeed, I know of no pre-European contact bands that took male adults alive: ibid 8. The singular term "Geneva Convention" is often used to refer to the agreement of 1949. 81 In doing so, these manuals incorrectly instruct their armed forces to recognise that those who wave a white flag cannot be attacked and that, by implication, if they themselves wish to surrender, the waving of a white flag is an effective method of manifesting this intention to the enemy. [11] False surrenders are usually used to draw the enemy out of cover to attack them off guard, but they may be used in larger operations such as during a siege. 2 9 Murray, Daragh and others, Practitioners Guide to Human Rights Law in Armed Conflict (Oxford University Press A sovereign state may surrender following defeat in a war, usually by signing a peace treaty or capitulation agreement. 10, A similar story can be told in relation to the regulation of armed conflict, and thus the regulation of surrender during ancient times. 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