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. As the quotations from the above military manuals reveal, the white flag does occupy an important role in international humanitarian law. 24 For the lex specialis principle to apply it is not enough that the same subject matter is dealt with by two provisions; there must be some actual inconsistency between them, or else a discernible intention that one provision is to exclude the other: International Law Association, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries (2001) Yearbook of the International Law Commission, Vol II, Pt Two, 140. 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. 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. 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 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. 88 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. 64 Virginia Journal of International Law 795, 798Google Scholar. US Law of War Manual (n 68) para 5.9.3.2. 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. International Law Studies 541Google Scholar. 106 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. 26 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. According to this principle, combatants could engage only in those measures that were indispensable for securing the ends of the war.Footnote 4 and that [t]he hoisting of a white flag has no other legal meaning in the law of war.Footnote False surrender is a type of perfidy in the context of war. [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). With regard to non-international armed conflict, Article 4 of Additional Protocol II delineates a number of fundamental guarantees and specifically states: All persons who do not take a direct part or who have ceased to take part in hostilities, whether or not their liberty has been restricted, are entitled to respect for their person, honor and convictions and religious practices. 20 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 It is therefore concerning that a number of military manuals erroneously identify the white flag as a sign of surrender under international humanitarian law. The Geneva Conventions must be understood as a human rights treaty, say Byers, created to protect individuals and not the state that signed it. 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. 92. See generally 55 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. Thus, by about 1900, most publicists recognised a customary rule which made it unlawful to refuse quarter or to wound or kill those who unconditionally offered to surrender.Footnote Any males of fighting age or the elderly that fell into band warriors power were simply killed. 3 This view is also endorsed by the ICRC, which explains that [t]he law of armed conflict does not prohibit attacks on retreating enemy forces. 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. the consequence would be that where a situation is under the control of a stateFootnote 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. [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. The Oxford Manual of 1880, a non-binding document produced by the Institute of International Law, explained that it was prohibited to injure or kill an enemy who has surrendered at discretion or is disabled, and to declare in advance that quarter will not be given, even by those who do not ask it for themselves.Footnote 119 98 91 In this Protocol, the fundamentals of "humane treatment" were further clarified. The Lieber Code (as it became known) was promulgated by US President Abraham Lincoln to Union forces in 1863 and represented the first attempt to codify and systematise the law of war generally and the rule relating to surrender in particular. 121 The Brussels Manual of 1874, although never attaining the status of treaty law, also precluded the refusal of quarter.Footnote 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. 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. 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. It does not necessarily indicate as it is often believed an intention to surrender.Footnote The Lieber Code is often regarded as providing the foundation for subsequent attempts to regulate warfare. 29 One of the more infamous examples was the alleged false surrender of British troops at Kilmichael, during the Irish War of Independence. 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 The Fourth Geneva Convention of 1949 extends the protection of civilians and prisoners of war during military occupation, even in the case . 2009) 8687 34 It also grants the right to proper medical treatment and care. 2. They shall in all circumstances be treated humanely, without any adverse distinction. The ICC Statute goes farther than the Fourth Geneva Convention. 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 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). 20 8 77 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. [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. 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 126 Though 16 governments signed the conventions in 1864, Great Britain, Germany, Sweden and the United States did not; the U.S. Congress finally ratified the conventions in 1882, making it the. 27 74 Total loading time: 0.958 Retreat is not the same as surrender. The ICRC, for example, expressly considers and then rejects this contention: Melzer (n 57) 70. It requires that the wounded, sick and shipwrecked be collected and cared for. 21 Green, Leslie, The Contemporary Law of Armed Conflict (Manchester University Press [A] soldier who fights to the very last possible moment assumes certain risks. Civilians are liable to direct targeting for such timeFootnote Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? 73 Additional Protocol I (n 6) art 57(1). Second, this code of conduct (and so the legal obligation to accept surrender) applied only between knights who were within Christendom: the code [of chivalry] was intended to apply only to hostilities between Christian princes and was seldom applied outside that context, for example, in the Crusades.Footnote 136 11 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. Further, additional regulations regarding the treatment of civilians were introduced. 2012) 75Google Scholar. 8 More recent times brought about an increased tendency to regulate warfare and thus the tendency towards regulating surrender continued and improved.Footnote Such persons are known as parlementaires. 54 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. "useRatesEcommerce": false 3. 25 This language was added in 1949 to accommodate situations that have all the characteristics of war without the existence of a formal declaration of war, such as a. Nations party to the Convention may not use torture to extract information from POWs. As such, the active hostilities framework [i.e. The moral argument for this is that as long as the soldier is participating in the military effort, he knowingly risks his life. Neither treaty law, including the relevant commentaries, nor military manuals indicate that retreat is indicative of surrender. 139 15 16 Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 64 Additional Protocol I does not define what amounts to a hostile act but the Commentary to the Additional Protocol provides examples, such as resuming combat functions if the opportunity arises, attempting to communicate with their own party, and destroying installations and equipment belonging to their captor or to their own party.Footnote [11] This prohibition is repeated in Additional Protocol II, which adds that "it is prohibited to order that there shall be no survivors". Proof of application of Geneva Conventions or Protocol I to the Geneva Conventions 261. As civilians do not directly participate in hostilities they do not pose a threat to the military security of the opposing party. 133 No weapons that could screw around with the laws of physics negatively . and non-internationalFootnote 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 . 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]. Additional Protocol II (n 49) art 13(1). In other instances, however, international tribunals and human rights bodies have deviated from Nuclear Weapons and applied human rights law standards in determining the legality of the use of force by states.Footnote 60. The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. 78, International human rights law may muddy the waters here. The issue is that ground forces in such circumstances need to surrender in ways that are clear and unequivocal.Footnote Even more so forbidding the use of superweapons on or near civilian populations. According to the Israeli Military Manual, it is absolutely forbidden in the strongest terms to attack such a combatant [one who has surrendered]. 28 Indeed, I know of no pre-European contact bands that took male adults alive: ibid 8. 96. In essence, then, whether the discarding of weapons (where a person is in possession of weapons) and placing hands above the head or waving a white flag constitute an effective method of expressing an intention to surrender boils down to whether such conduct is supported by state practice. Other states similarly reject the contention that the white flag indicates an intention to surrender. Finally, it discusses how occupiers are to treat an occupied populace. 57 Initially, the Manual explains that:Footnote 78 Sandoz, Swinarski and Zimmermann (n 1) 487. 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 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 Additionally, the rights of interned persons were specifically enumerated, providing protections for those charged with crimes during wartime. Luban, David, Military Necessity and the Culture of Military Law (2013) 26 The US pilots then radioed military headquarters, explaining that the two insurgents came out [of the truck] wanting to surrender.Footnote 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. Henderson (n 55) 88 fn 64. 2016)Google Scholar para 5.06. 112, The UK's Manual on the Law of Armed Conflict is interesting because it equivocates as to whether the white flag expresses an intention to surrender, epitomising the lack of clarity as to the status of the white flag under international humanitarian law. Virginia Journal of International Law Online 1, 20Google Scholar. 16 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 The Geneva Conventions and the Death of Osama Bin Laden. 49 Under this Convention, civilians are afforded the same protections from inhumane treatment and attack affordedto sick and wounded soldiers in the first Convention. 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. Paul Cartledge, Surrender in Ancient Greece in Afflerbach and Strachan (n 2) 15, 21. 1985) 6Google Scholar. Eventually, its normative influence impacted upon the regulation of armed conflict and sought to have a humanising effect on it, encouraging the adoption of rules that better protected the human dignity of those embroiled in armed conflict.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. Those who believe it will begin preparations to defend themselves against Islam. 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 Specifically, it prohibits attacks on civilian hospitals, medical transports, etc. r.j.buchan@sheffield.ac.uk. (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? 135. Lubell (n 80) 750. GC III (n 50) art 4A. Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 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. Persons who attempt to escape or commit a hostile act which means that they fail to submit to the authority of their opponent indicate that they are resuming participation in hostilities. (2) Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? Surrender, in military terms, is the relinquishment of control over territory, combatants, fortifications, ships or armament to another power. The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but only if the opposing nation "accepts and applies the provisions" of the Conventions. In lay terms many are likely to regard the waving of the white flag as a widely recognised method of indicating a desire to surrender. Canada, Code of Conduct for CF Personnel (Office of the Judge Advocate General 2001) r 5 para 3. Hors de combat is a French phrase commonly used in international humanitarian law to mean out of combat. 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. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits [2001] ICJ Rep 40, [205]. For a discussion of the legal framework relating to parlementaires see 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. 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. 69 In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. 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. In the Court's often quoted dictum:Footnote Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians. One would usually expect to find the answers to these questions in those international humanitarian law treaties that contain the rule of surrender. The US Corporate government seeks to roll over its payments past the deadline. International Review of the Red Cross 3CrossRefGoogle Scholar. In its legal dimension, where a valid offer of surrender is communicated to and received by an opposing force, it is legally obligated to accept that offer and refrain from making surrendered persons the object of attack.Footnote 133 40 67 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). 115 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. [12] For example, Canada's Code of Conduct states that [t]he showing of a white flag is not necessarily an expression of an intent to surrender.Footnote 107 The contribution of this article has been to propose a tripartite test for determining the type of conduct that constitutes an act of surrender and thus imposes a legal obligation upon opposing forces to cease fire: (1) Have surrendering persons engaged in positive acts that clearly indicate that they are outside the theatre of war and therefore no longer represent a threat to the opposing force? See also Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, adopted by the 9th UN Congress on the Prevention of Crime and Treatment of Offenders, Havana, 27 August7 September 1990, UN Doc A/CONF.144/28/Rev.1 (1990), art 10 of which provides that before using force, law enforcement officials shall give a clear warning of their intent to use firearms, with sufficient time for the warning to be observed, unless to do so would unduly place the law enforcement officials at risk or would create a risk of death or serious harm to other persons. 137 If Lewis's claim is false, however, the claim itself is dangerous. Another important question is whether combatants are required to offer vanquished forces the opportunity to surrender before direct targeting can commence? The code of honour forbade warriors to surrender; they had to win or die, with no mercy.Footnote It defines their rights and sets down detailed rules for their treatment and eventual release. 128 Published online by Cambridge University Press: Robertson (n 3) 547. Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). 43 The Geneva Convention is a standard by which prisoners and civilians should be treated during a time of war. The Apache helicopter opened fire on the insurgents, eventually killing them both. 86, In the context of non-international armed conflict international tribunals have at times concurred with the ICJ in the Nuclear Weapons advisory opinion and concluded that the legality of the use of force by states must be determined according to international humanitarian law criteria.Footnote 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 Before we examine what type of conduct constitutes a positive act indicating an intention to no longer directly participate in hostilities, it is first necessary to identify those persons whom international humanitarian law regards as directly participating in hostilities during armed conflict, because it is within this context that the rule of surrender operates. 75 hasContentIssue true, The Legal Development of the Rule of Surrender. This agreement extended the protections described in the first Convention to shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships. 113 There were, however, three notable exceptions to this rule. [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. 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. O'Connell, Mary Ellen, Historical Development and Legal Basis in Fleck, Dieter (ed), The Handbook of International Humanitarian Law (Oxford University Press 101 A request to advance across the battlefield to enter into negotiations is made by waving the white flag, which then must either be accepted or rejected by the opposing force. 56 . 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. 2005) 975CrossRefGoogle Scholar. US Law of Armed Conflict Deskbook (International and Operational Department 2015) 78. Sandoz, Swinarski and Zimmermann (n 1) 48687. 37, The view that surrendered forces should not be made the object of attack is supported by the principles of military necessity and humanity. 48 Where a valid offer of surrender is communicated to an opponent, there is a legal obligation upon the opponent to accept that offer and to refrain from making surrendered persons the object of attack. It also specifies the rights of internees (POWs) and saboteurs. [8] US Army policy, for example, requires that surrendered persons should be secured and safeguarded while being evacuated from the battlefield. 123 See, eg, ECtHR, McCann v United Kingdom, App no 18984/91, Judgment, 5 September 1995, paras 200205. And Operational Department 2015 ) 78 the Fourth Geneva Convention maritime Delimitation and Territorial between! Icc Statute goes farther than the Fourth Geneva Convention is a standard which... 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