It entered into force 19 June 1931. hasContentIssue true, The Legal Development of the Rule of Surrender. 98 83 } It is therefore concerning that a number of military manuals erroneously identify the white flag as a sign of surrender under international humanitarian law. This is the requirement of Additional Protocol I (n 6) art 57(2)(a)(i), which explains that those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and not subject to special protections but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them. 2013) 11316Google Scholar. At present, 168 States are party to Additional Protocol I and 164 States to Additional Protocol II,this still places the 1977 Additional Protocols among the most widely accepted legal instruments in the world. Henderson (n 55) 88 fn 64. It renders the convicts or accused of such crimes to the jurisdiction of all signatory States, regardless of their nationality or territoriality of their crime. Common Article 3 (n 50); Additional Protocol II (n 49) art 1. According to this principle, combatants could engage only in those measures that were indispensable for securing the ends of the war.Footnote ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. Luban, David, Military Necessity and the Culture of Military Law (2013) 26 12 78, International human rights law may muddy the waters here. 117 The Geneva Convention of 1949 was negotiated after World War II to update the first three treaties and add a fourth to protect civilians. 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. All persons protected under these conventions must be given shelter and cared for by the party to the conflict that holds power over them. 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. 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. International Review of the Red Cross 3CrossRefGoogle Scholar. 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. being groups who exhibit a sufficient degree of military organization and belong to a party to the conflictFootnote 139. 9 stipulate that it is forbidden to make persons who have surrendered the object of attack. Such limited state practice, of course, creates difficulties in attempting to define the contours of a rule of treaty and customary 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. 134 The Lieber Code is often regarded as providing the foundation for subsequent attempts to regulate warfare. Where, however, a confrontation occurs between a state and an armed group within that state's territory, and that state exercises control over the situation, the members of the armed group are under the jurisdiction of the state and this is a scenario that typically points to human rights as the lex specialis.Footnote 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. 49 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 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. 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. 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 15 No weapons that could screw around with the laws of physics negatively . A person hors de combat is: (a) anyone who is in the power of an adverse party; (b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or. The various meanings of the flag were later codified in the Hague and Geneva Conventions of the 19th and 20th centuries. d) To declare that no quarter will be given. 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. It defines their rights and sets down detailed rules for their treatment and eventual release. Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 The Apache helicopter opened fire on the insurgents, eventually killing them both. 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 principle and became a license for mischief.Footnote Perhaps the thorniest issue is what positive act (or acts) are recognised by international humanitarian law as expressing an intention to surrender. 113 No clear rule exists as to what constitutes surrender. 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. 85 Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 261. 70 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. 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. 105 About the Mechanism | ; Cases; Menu Total loading time: 0.958 What is perhaps most surprising is that there has been relatively little consideration of the rule of surrender within international humanitarian law literature. First, this code of chivalry applied only to interactions between recognised knights. 10, A similar story can be told in relation to the regulation of armed conflict, and thus the regulation of surrender during ancient times. If this is the case, it becomes clear that in order to surrender it is incumbent upon such persons to perform a positive act,Footnote 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. Additional Protocol I (n 6); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II). Even more so forbidding the use of superweapons on or near civilian populations. 16 Hamdiarguedthat such detentionwas illegal under the Geneva Conventions, withoutexpress Congressional consent. For example, the Human Rights Committee determined that Colombia had failed to comply with its international human rights law obligations when using force against members of an organised armed group because Colombian forces did not offer their opponents the opportunity to surrender before targeting (and killing) them. As the International Criminal Tribunal for the Former Yugoslavia (ICTY) would later explain, [t]he essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of human dignity in every person The general principle of respect for human dignity is the very raison dtre of international humanitarian law and human rights law: ICTY, Prosecutor v Furundzija, Judgment, IT-95-17/I-T, Trial Chamber II, 10 December 1998, [183]. 64 81 677 @RealColfair Replying to @SamRamani2 111 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. 21 114, 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 [T]ribal and pre-state societies seldom [took] prisoners and usually [did] not accept surrender: Lawrence H Keely, Surrender and Prisoners in Prehistoric and Tribal Societies in Afflerbach and Strachan (n 2) 7, 7. The rule of surrender does not require the opposing force to detain surrendered persons as prisoners of war (although they can if they wish). 78 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 US Corporations' September 30th fiscal payment deadline Sep 30, 2023 USA Each year around that time, as the payment deadline approaches, we see all sorts of maneuvers. Resolving the question of the type of conduct that expresses an intention to surrender would therefore produce the collateral benefit of also clarifying the rule relating to perfidy. One of the more infamous examples was the alleged false surrender of British troops at Kilmichael, during the Irish War of Independence. 4. 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). It recognizes that the application of these rules does not affect the legal status of the parties to the conflict. 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. 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. (2) Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? [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. 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]. International Review of the Red Cross 881, 889CrossRefGoogle Scholar. As Sassli and Olson explain, case law in this area is clearly contradictoryFootnote (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules limiting the barbarity of war. Merriam-Webster defines "surrender" as "the action of yielding one's person or giving up the possession of something especially into the power of another", and traces the etymology to the Middle English surrendre, from French sur- or sus-, suz "under" + rendre "to give back";[1] this in turn is defined by the University of Michigan Middle English Dictionary as meaning "The giving up of an estate, a grant of land, or an interest in property to the person who holds the right to it", or, in law, "the relinquishing of letters patent to the king", or "the giving back or return of something". The Teaching Manual for the armed forces of Cte d'Ivoire also explains that [t]he white flag is used to indicate the intention to negotiate and to protect the persons who negotiate. 93 76 In its military context the act of surrender denotes that the person surrendering is no longer engaged in hostilities: that he or she is hors de combat.Footnote 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. Tieya, Wang and Min, Wei, International Law (Falu Chubanshe Another way is to ceasefire, wave a white flag and emerge from a shelter with hands raised If he is surprised, a combatant can raise his arms to indicate that he is surrendering, even though he may still be carrying weapons. 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. However, the phraseology of these agreements means that civilians necessarily fall into a residual category of anyone who is not a fighter. 25 Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians. Other commentators disagree with the ICRC's approach and argue that all members of the military component may be treated as members of an organized armed group for targeting purposes regardless of the function they perform: It is a war crime under Protocol I of the Geneva Convention. 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. Put differently, there is a pressing military need to target them directly. 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]. 125 international humanitarian law] regulates the use of force against all combatants, military objectives, members of an armed group belonging to a party to the [international armed] conflict, and individuals directly participating in hostilities, irrespective of their location to any active battlefield: It grants the ICRC the right to offer its services to the parties to the conflict. 79 The general view is that where [a] government could effect arrest (of individuals or groups) without being overly concerned about interference by other rebels on that operation, then it has sufficient control over the place to make human rights prevail as lex specialis: Sassli and Olson (n 71) 614. Carnahan, Burrus M, Lincoln, Lieber and the Laws of War (1998) 92 Further, additional regulations regarding the treatment of civilians were introduced. Sassli, Marco and Olson, Laura M, The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts (2008) 90 63 The Brussels Manual of 1874, although never attaining the status of treaty law, also precluded the refusal of quarter.Footnote Failure to adhere to such demands provided they were reasonable in the sense that they did not place the surrendering forces in danger of being caught in crossfire would constitute unwillingness to submit themselves to the authority of their captor and would therefore vitiate their surrender, which means that they would remain permissible objects of attack under international humanitarian law.Footnote 2 Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 The notion of fighters also includes those members of an organised armed group that is party to a non-international armed conflict and who possess a continuous combat function.Footnote Has data issue: true Other emblems were later recognized, and the Geneva Conventions of 1949, the main topic of this article, confirmed them all. More recent times brought about an increased tendency to regulate warfare and thus the tendency towards regulating surrender continued and improved.Footnote 2012) 75Google Scholar. I doubt after the fall of humanity with dark forces living on the moon and superpowered zombies defending earth we still hold the Geneva convention as anything more than a . Sandoz, Swinarski and Zimmermann (n 1) 487. 96. 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 On rare occasions the demands of military necessity converge with humanitarian considerations and prompt the law in the same direction.Footnote The Fourth Geneva Convention of 1949 extends the protection of civilians and prisoners of war during military occupation, even in the case . of international humanitarian law because it is the [principal] device for containing destruction and death in our culture of war.Footnote What are feasible precautions is difficult to define but Article 3(4) of the Convention on Conventional Weapons 1980Footnote Fighters include those persons who are formally incorporated into a state's armed forces via domestic law and those members of an organised armed group who belong to a state that is party to the armed conflict and who possess a continuous combat function.Footnote They were killed by enemy fire in a disputed incident. who possess a continuous combat function.Footnote See, eg, Human Rights Committee, Suarez de Guerrero (n 82). Rome Statute establishing the International Criminal Court (entered into force 3 September 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(vi). [citation needed] Flags and ensigns are hauled down or furled, and ships' colors are struck. 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 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 In order to be in the power of an adverse party the person in question does not have to be physically apprehended by the opposing force. No killing civilians. Attacking persons who are recognized as hors de combat is prohibited. It is a war crime under Protocol I of the Geneva Convention. The exception here is From time immemorial, a white flag has been used as a signal of a desire to open communications with the enemy. There were, however, three notable exceptions to this rule. 120 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 101 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. 1985) 6Google Scholar. United Nations | International Residual Mechanism for Criminal Tribunals UN IRMCT. Leiden Journal of International Law 315, 343CrossRefGoogle Scholar. [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. 51 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 first Convention was initiated by what is now theInternational Committee for the Red Cross and Red Crescent(ICRC). Bradbury, Jim, The Medieval Siege (The Boydell Press 136 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. These four treaties have been adopted by all 194 nations of the world. International Review of the Red Cross 737, 738CrossRefGoogle Scholar. The issue is one of reasonableness. Other states similarly reject the contention that the white flag indicates an intention to surrender. In such instances the adverse party is not under an obligation to offer its opponent the opportunity to surrender before direct targeting can commence but, instead, international humanitarian law prohibits the adverse party from making such a person the object of attack. 24 80 The Geneva Conventions and their Additional Protocols is a body of Public International Law, also known as the Humanitarian Law of Armed Conflicts, whose purpose is to provide minimum protections, standards of humane treatment, and fundamental guarantees of respect to individuals who become victims of armed conflicts. 26 6 State practice points towards a broad reading of the notion of what is a hostile act. 33 Both Additional Protocols to the 1949 Geneva ConventionsFootnote 54 Statute of the International Court of Justice (n 41) art 38(1)(b). Now theInternational Committee for the Red Cross 737, 738CrossRefGoogle Scholar who possess a continuous function.Footnote. 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