2013) 1Google Scholar, para 109. 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. However, most agree surrender means ceasing resistance and placing oneself at the captor's discretion: US Law of Armed Conflict Deskbook (n 60) 138. 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 Roberts further notes that [t]he issue is not that ground forces simply cannot surrender to aircraft. The Lieber Code is often regarded as providing the foundation for subsequent attempts to regulate warfare. 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 10 Also in recent events we haven't been fighting an organized enemy so they . Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. 15 126 2. RT @ObliviousVicar: False surrender is a type of perfidy in the context of war. [5], According to a leaflet given to British Empire troops before the Gallipoli landings, "Turkish soldiers as a rule manifest their desire to surrender by holding their rifle butt upwards and by waving clothes or rags of any colour." 49 While other international humanitarian law treaties impose an obligation upon opposing forces to accept valid offers of surrender, they do not provide any guidance as to the type of conduct (verbal or otherwise) that signifies an intention to surrender. The ICRC Study is not a source of international law but instead intends to capture and delineate customary rules of international humanitarian law applicable to international and non-international armed conflict: ibid xxiv. 116 58 By and large, however, the treaties do not fully delineate the meaning of the rule of surrender and, while military manuals overwhelmingly require that armed forces do not make surrendered persons the object of attack, they generally fail to specify the conditions that constitute a legally effective surrender.

The leaders of the surrendering group negotiate privileges or compensation for the time, expense and loss of life saved by the victor through the stopping of resistance. 21 February 2018.

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. Dominican Republic, La Conducta en Combate segn las Leyes de la Guerra, Escuela Superior de las FF.AA.

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. 14 It is prohibited to order that there shall be no survivors. Is retreat tantamount to surrender? United Kingdom, Joint Service Manual of the Law of Armed Conflict (2004) paras 10.510.5.1. 130 The US explains that [s]urrender may be made by any means that communicates the intent to give up. The 10 articles of the original 1864 version of the Convention have been expanded in the First Geneva Convention of 1949 to 64 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.
12 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 soldiers wanted to surrender, negotiate or what? First, this code of chivalry applied only to interactions between recognised knights. Close this message to accept cookies or find out how to manage your cookie settings. Total loading time: 0 The ICC Statute goes farther than the Fourth Geneva Convention. He may signal to you with a white flag, by emerging from his position with arms raised or yelling to ceasefire.Footnote 42, Nowadays, the customary international law status of the rule of surrender is confirmed by the fact that a significant number of military manuals adopted by states which represent important sources of state practice when identifying obligations under customary international humanitarian lawFootnote 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). 28 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. The principle of military necessity was intended originally therefore to operate as a principle of restraint. 98 Journal of National Security and Policy 379, 387Google Scholar. Leiden Journal of International Law 315, 343CrossRefGoogle Scholar. GC III (n 50) art 4A. Rule 47 reads:Footnote 43 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. View all Google Scholar citations 94 12 91 109 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 This later resulted in a U.S. congressional charter, officially recognizing Red Cross services. 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. In short, while international humanitarian law permits parties to an armed conflict to attack (and kill) enemies, even where they are not engaging in threatening behaviour (and assuming they are not hors de combat), international human rights law permits a state to use force only where it is necessary and proportionate in the circumstances prevailing at the time.Footnote

Section 2 situates surrender within its broader historical and theoretical context in order to provide a better understanding of the development of the rule of surrender within conventional and customary international humanitarian law as well as the function of the rule of surrender during armed conflict. 71 } Green, Leslie, The Contemporary Law of Armed Conflict (Manchester University Press

6 95 133 36 members of the Irish Republican Army ambushed a truck carrying 18 Auxiliary Division officers.
32 It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse Parties while engaging in attacks or to shield, favour, protect or impede military operations. [13] 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. Traditionally, a surrender ceremony was accompanied by the honors of war. 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 122. [I]t is always permissible due to military necessity to attack the enemy's combatants. It has been asserted that the incident, along with many other perfidious actions of the Japanese throughout the Pacific War, led to an Allied tendency to shoot the dead or wounded Japanese soldiers and those who were attempting to surrender and not to take them as POWs easily. Two additional protocols to the 1949 agreement were approved in 1977. This article does not consider when acts of surrender are legally effective during naval and aerial warfare, to which different rules apply.Footnote 55 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. 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.

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

59, Combatants who wish to surrender must act purposively in order to repudiate the assumption that they represent a threat to military security. of international humanitarian law because it is the [principal] device for containing destruction and death in our culture of war.Footnote 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. This being said, under international humanitarian law persons are regarded as hors de combat and thus immune from attack where they are in the power of the adverse party: Additional Protocol I (n 6) art 41(2)(a); ICRC Study (n 6) r 47. 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 The Laws of War on Land, 9 September 1880 (the Oxford Manual), art 9(b). Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2 1987) 480Google Scholar.

2009) 22Google Scholar. 93

[1] [2] Mercenaries fight for money or other forms of payment rather than for political interests. As the law of non-international armed conflict in the context of targeting is currently unclear,Footnote

The code of chivalry did not govern the relations between knights and common warriors; knights, therefore, were not subject to any legal obligation to accept offers of surrender from regular combatants during times of hostilities: the desperate situation of the common warriors must be stressed because it warns us against overstating the so-called rules of war, which had begun to develop a certain code of human behaviour among noble warriors since the Middle Ages.Footnote No clear rule exists as to what constitutes surrender. 137 It is prohibited to make use in an armed conflict of the flags or military emblems, insignia or uniforms of neutral or other States not Parties to the conflict. 117. 73 75 For the purpose of targeting, and in order to maintain the principle of distinction during non-international armed conflict, the law of such conflict distinguishes between, on the one hand, armed forces and armed groups (who are often referred to collectively as fightersFootnote 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. Contrary to popular belief, the waving of a white flag is not a legally recognised method of expressing an intention to surrender under either conventional or customary international humanitarian law it does not attract sufficient support within state practice and, indeed, the practice of a number of states openly rejects the contention that the waving of a white flag is constitutive of surrender. Nevertheless, available state practice, in conjunction with the wider theoretical context within which the rule of surrender operates, can be used to make general inferences and to draw tentative conclusions as to the meaning of this rule under international humanitarian law. There were, however, three notable exceptions to this rule. 4 See generally ICRC Study (n 6) 168. Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927). During times of international armed conflict state practice is fairly uniformFootnote 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: and that [t]he hoisting of a white flag has no other legal meaning in the law of war.Footnote See generally Additionally, a false surrender, defined as perfidy in the Geneva Convention was added in 1977, the same year ep IV came out. 132 The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949. Certain states maintain the view that where civilians repeatedly participate directly in hostilities to the extent that their future participation is likely and predictable, they remain a threat to the military security of the opposing party and can be directly targeted even notwithstanding lulls in participation.Footnote 41 47 125 In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. 115, One final question remains. impose an obligation upon state parties to refrain from making the object of attack a person who has expressed an intention to surrender. 133 2013) 11316Google Scholar. being groups who exhibit a sufficient degree of military organization and belong to a party to the conflictFootnote The code of honour forbade warriors to surrender; they had to win or die, with no mercy.Footnote It is a war crime under Protocol I of the Geneva Convention. 2016) 4951 For the first time we witnessed an intellectual appraisal of the conduct of hostilities, the recognition that warfare needed to be subject to limitations, and that these limitations could be achieved through the imposition of legal regulation. 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. U.S. ambassador to Ukraine Bridget Brink, left, listens to Ukraine's Prosecutor General Iryna Venediktov during a tour of Borodyanka, Ukraine, on June 4. 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. Such conduct is known as perfidy. In the context of an international armed conflict, Article 40 of Additional Protocol I explains that 'it is prohibited to order that . Additional Protocol I (n 6) art 57(1). 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. 60. 66 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 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. 7 From time immemorial, a white flag has been used as a signal of a desire to open communications with the enemy. It contains a short section concerning the general protection of populations against certain consequences of war, without addressing the conduct of hostilities, as such, which was later examined in the Additional Protocols of 1977.

Accounts of false surrender can be found relatively frequently throughout history. Gleb Garanich/Reuters. This is significant because where state practice is widespreadFootnote

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