137 Total War, Encyclopedia Britannica Online, 2015, https://www.britannica.com/topic/total-war. Holger Afflerbach and Hew Strachan, A True Chameleon? Virginia Journal of International Law 795, 798Google Scholar. In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. This being said, the regulation of armed conflict was skeletal and said very little about how surrendering forces had to be treated. Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). 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 Court rejected this argument andheld that consent exised since September 11, 2001, through an Authorization for Use of Military Forces (AUMF), a Congressional resolution which empowered the President to use all necessary and appropriate forces against any nations, organizations, or personsthat he determinedto have planned, authorized,committed, or aided in the September 11, 2001attacks. 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. 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. See, eg, ECtHR, McCann v United Kingdom, App no 18984/91, Judgment, 5 September 1995, paras 200205. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits [2001] ICJ Rep 40, [205]. See generally 131 118 Given that the relevant treaties are silent as to the conduct that constitutes an act of surrender, state practice becomes an important indicator of the ways in which ambiguous or unclear treaty provisions must be interpreted.Footnote The Apache helicopter opened fire on the insurgents, eventually killing them both. 5 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. 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 67 and non-internationalFootnote [T]here is little evidence that the archaic and classical Greeks enacted internationally recognised laws governing the practice of warfare: It grants the ICRC the right to offer its services to the parties to the conflict. 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. 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 Edited by: . 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. In light of the fog of war that inevitably (and often densely) hangs over armed conflict, it may be the case that an enemy expresses an intention to surrender but the circumstances existing at the time prevent the opposing force from discerning that offer of surrender. 119 Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 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. 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. This article explores the circumstances in which the act of surrender is effective under international humanitarian law and examines, in particular, how surrender can be achieved in practical terms during land warfare in the context of international and non-international armed conflict. In 1949, after World War II, two new Conventions were added, and the Geneva Conventions entered into force on 21 October 1950. 23 A sovereign state may surrender following defeat in a war, usually by signing a peace treaty or capitulation agreement. This conclusion may be different in a scenario where a commander has his or her enemy pinned down and the enemy decides to surrender but, for various reasons (such as distance between the respective parties, inimical terrain, inclement weather), the offer of surrender is not immediately apparent to the opposing commander. 79 According to the Israeli Military Manual, it is absolutely forbidden in the strongest terms to attack such a combatant [one who has surrendered]. 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 Robertson (n 3) 547. 2012) 75Google Scholar. It also grants the right to proper medical treatment and care. 56 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 act of surrender, therefore, is a continuing obligation insofar as the persons surrendering must continually comply with the demands of their captor. 112 Armed conflict in ancient Greece was therefore largely unregulated and, in particular, the Greek code of honor offered no protection to surrendering soldiers.Footnote 19 False surrender is a type of perfidy in the context of war. State practice (coupled with opinio juris) is also key to interpreting obligations imposed by customary international law.Footnote 46 2. It is not just a matter of whether he "immediately surrendered""clearly expressing an intention to surrender" is only one of three conditions under this rule. Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461. The exception here is 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. [citation needed] Flags and ensigns are hauled down or furled, and ships' colors are struck. 113 [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. 77 2016)Google Scholar para 5.06. It also specifies the rights of internees (POWs) and saboteurs. that is party to a non-international armed conflict, targeting decisions must be guided by the standards set by international human rights law, which means that states must make all reasonable efforts to communicate to their enemies the offer of surrender before they can be directly targeted. 114, In light of this disagreement, Henderson is surely correct in his assertion that [t]he flying of a white flag is not a definite symbol of surrender.Footnote 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. Tieya, Wang and Min, Wei, International Law (Falu Chubanshe 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). Once Islam is defined as inherently violent and . 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. Looking for Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales)? 128. Even more so forbidding the use of superweapons on or near civilian populations. Marsh, Jeremy and Glebe, Scott L, Time for the United States to Directly Participate (2011) 1 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 . 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. 2009) 8687 15 and gives no conclusive answer as to what human rights law requires of government authorities using force against fighters.Footnote A US report into the incident explained:Footnote For example, is the waving of a white flag indicative of surrender? 85 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. 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 . Luban, David, Military Necessity and the Culture of Military Law (2013) 26 The law of war obligates a party to a conflict to accept the surrender of enemy personnel: ibid. 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. US Law of War Manual (n 68) para 5.9.3.2. It entered into force 19 June 1931. The principle of military necessity was intended originally therefore to operate as a principle of restraint. 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. Schmitt, Michael N and Widmar, Eric W, On Target: Precision and Balance in the Contemporary Law of Targeting (2014) 7 As in ancient Greece, combatants who sought to surrender during armed conflict in ancient Rome were in an extremely precarious position and their fate was entirely at the discretion of the opposing force: the offer of surrender could permissibly be refused and combatants slain. They shall in all circumstances be treated humanely, without any adverse distinction. 47 [12] US Law of War Manual (n 68) para 5.4.6.3. 58 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. US Department of Defense (n 77) 644. The act of surrender possesses a political, military and legal dimension. 134 Combatants also include those members of irregular armed forces (such as militias and volunteer corps)Footnote Individual combatants can indicate a surrender by discarding weapons and raising their hands empty and open above their heads; a surrendering tank commander should point the tank's turret away from opposing combatants. 44. In this Protocol, the fundamentals of "humane treatment" were further clarified. 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 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. 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. It is a war crime under Protocol I of the Geneva Convention. Rule 47 reads:Footnote 14 96. International Review of the Red Cross 3CrossRefGoogle Scholar. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. 31 37, The view that surrendered forces should not be made the object of attack is supported by the principles of military necessity and humanity. Furthermore, the Rome Statute establishing the International Criminal Court (ICC Statute) determines that in times of internationalFootnote (underscore in the original). It also grantsthe right to proper medical treatment and care. 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 For combatants in international armed conflicts, international humanitarian law is generally considered to constitute the lex specialis in relation to the amount of force to be used against enemy combatants: UN Human Rights, Office of the High Commissioner, International Legal Protection of Human Rights in Armed Conflict (United Nations 2011) 67. Importantly, a significant number of military manuals produced by states identify the laying down of weapons and the raising of hands as an acceptable means through which to manifest an intention to surrender,Footnote 51 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. 50 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 According to this principle, combatants could engage only in those measures that were indispensable for securing the ends of the war.Footnote Henderson (n 55) 88 fn 64. 30 and that [t]he hoisting of a white flag has no other legal meaning in the law of war.Footnote The view is that where a state and an organised armed group are actually engaging in armed hostilities, this is precisely the scenario where humanitarian law is designed to apply. 54 2013) 1Google Scholar, para 109. The US military was criticised for this conduct.Footnote 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. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. Additional Protocol I (n 6) art 50(1); ICRC Study (n 6) r 6. 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. 43 See generally This has been consistently interpreted as imposing a treaty obligation upon parties to this Protocol to accept valid offers of surrender.Footnote When a soldier surrenders, the army that takes. It specifically prohibits murder, mutilation. Conventions Approved. Have persons who are surrendering unconditionally submitted to the authority of their captor? 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 In the context of an international armed conflict, Article 40 of Additional Protocol I explains that it is prohibited to order that there shall be no survivors. 26 More recent times brought about an increased tendency to regulate warfare and thus the tendency towards regulating surrender continued and improved.Footnote which, in the context of armed conflict, would be international humanitarian law. 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. 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]. 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. 8 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. 41 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. 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. Although not a source of law, since its publication the Interpretive Guidance has gained traction among states and is thus becoming the authoritative guidance on the law of targeting: 2005) 975CrossRefGoogle Scholar. GC III (n 50) art 4A. These three limbs will be now explored in greater detail. The general view is that international human rights law only imposes obligations upon states. The Geneva Conventions and the Death of Osama Bin Laden. 56 116 138 45 55 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. The rule of surrender does not require the opposing force to detain surrendered persons as prisoners of war (although they can if they wish). Two additional protocols to the 1949 agreement were approved in 1977. 36 71 regardless of how hopelessly outgunned and vanquished they may be.Footnote Its customary status during non-international armed conflict is confirmed by ICRC Study (n 6) r 15. 20 72 Common Article 3 (n 50); Additional Protocol II (n 49) art 1. The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. 47 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. This approach is consistent with the obligation arising under the law of internationalFootnote 33 This is the only meaning that the white flag possesses in the law of armed conflict The display of a white flag means only that one party is asked whether it will receive a communication from the other. Article 3 of the Geneva Conventions covered, for the first time, situations of non-international armed conflicts. 131 While there was a clear obligation not to make objects of attack enemy knights who had surrendered, captured knights could still be sold for ransom: John Gillingham, Surrender in Medieval Europe An Indirect Approach in Afflerbach and Strachan (n 2) 55, 68. Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (Cambridge University Press 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 Any males of fighting age or the elderly that fell into band warriors power were simply killed. d) To declare that no quarter will be given. The first convention covers soldiers wounded on the battlefield, the second covers sailors wounded and. In particular, it was the cruelties of the Thirty Years War that ultimately led to the jurisprudential consideration of the jus in bello [the law of war] and established a number of principles to be observed by combatants.Footnote 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. 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. 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 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. [7], The Third Geneva Convention states that prisoners of war should not be mistreated or abused. 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. It contains no obligation "either explicit or implicit" for refugees to claim asylum in the first safe country they reach . 22 The conventions themselves were a response to the horrific atrocities of World War II. The US Law of War Manual reiterates this view: Enemy combatants remain liable to attack when retreating. For a discussion of the legal framework relating to parlementaires see 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. 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 20 Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol II: Practice (International Committee of the Red Cross (ICRC) and Cambridge University Press CrossRefGoogle Scholar. It is a war crime under Protocol I of the Geneva Convention. 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. 7 73 43 Marginal note: Conventions approved 2 (1) The Geneva Conventions for the Protection of War Victims, signed at Geneva on August 12, 1949 and set out in Schedules I to IV, are approved.. 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. 133 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. Under this Convention, civilians are afforded the same protections from inhumane treatment and attack affordedto sick and wounded soldiers in the first Convention. and non-international armed conflictFootnote American Journal of International Law 239CrossRefGoogle Scholar. Another important question is whether combatants are required to offer vanquished forces the opportunity to surrender before direct targeting can commence? 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