Common Article 3 functions like a mini-Convention within the larger GenevaConvention itself, and establishes fundamental rules from which no derogation is permitted, containing the essential rules of the Geneva Convention in a condensed format, and making them applicable to non-international conflicts. 1981) 50910Google Scholar. If they did take prisoners it was only young women or some women and children. 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 During the Age of Enlightenment and under the tutelage of European philosophers, the principle of humanity emerged as a counterweight to the principle of military necessity.Footnote The 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. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Indeed, there is support for this approach in a number of military manuals. [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. 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. 43 The law of international armed conflict defines civilians in negative terms as those persons who do not qualify as combatants.Footnote ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. US Law of War Manual (n 68) para 5.9.3.2.; France, Manuel de Droit des Conflits Arms, Ministre de la Dfense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit europen, Bureau du droit des conflits arms (2001) 105; Belgium, Droit de la Guerre, Dossier d'Instruction pour Soldat, l'attention des officiers instructeurs, JS3, Etat-Major Gnral, Forces Armes belges, undated, 15; Cameroon, Droit des conflits arms et droit international humanitaire, Manuel de l'instructeur en vigueur dans les forces de dfense, Prsidence de la Rpublique, Ministre de la Dfense, Etat-major des Armes (2006) 256; Benin, Le Droit de la Guerre, III fascicules, Forces Armes du Bnin, Ministre de la Dfense nationale (1995); Chad, Droit international humanitaire, Manuel de l'instructeur en vigueur dans les forces armes et de scurit, Ministre de la Dfense, Prsidence de la Rpublique, Etat-major des Armes (2006). More specifically, questions arise as to the type of conduct that signals an intention to surrender. 12 https://doi.org/10.1017/S0021223717000279, Commentary to Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Going Down with Flying Colours: Naval Surrender from Elizabethan to Our Own Times, How Fighting Ends: A History of Surrender, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare, Development and Principles of International Humanitarian Law, The Laws of War: Constraints on Warfare in the Western World, Saint Augustine and the Theory of Just War, The Handbook of International Humanitarian Law, Chivalry Without a Horse: Military Honour and the Modern Law of Armed Conflict, The Law of Armed Conflict: Historical and Contemporary Perspectives, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War, Military Necessity and the Culture of Military Law, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance, The Conduct of Hostilities under the Law of International Armed Conflict, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, On Target: Precision and Balance in the Contemporary Law of Targeting, Time for the United States to Directly Participate, Virginia Journal of International Law Online. armed conflict that, when launching an attack, combatants and fighters must take all feasible precautions to avoid or minimise damage to non-military objects such as civilians and those hors de combat.Footnote However, the phraseology of these agreements means that civilians necessarily fall into a residual category of anyone who is not a fighter. Published online by Cambridge University Press: 67 (3) Have the persons surrendering unconditionally submitted themselves to the authority of their captor? 58 hasContentIssue true, The Legal Development of the Rule of Surrender. False or misleading statements in applications 143. regardless of how hopelessly outgunned and vanquished they may be.Footnote Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians. 22 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. 132 View all Google Scholar citations 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 126 US Law of Armed Conflict Deskbook (n 60) 167. Rome Statute establishing the International Criminal Court (entered into force 3 September 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(vi). Depending upon the circumstances, in the majority of instances it is likely that in order for force to be deemed necessary, the state must first utilise all reasonable measures at its disposal to communicate to the enemy an offer of surrender and, subsequently, to ascertain whether that offer has been accepted or rejected.Footnote Professor Sir Adam Roberts, quoted in Leigh (n 123). 128 122 70 The development of the Geneva Conventions was closely associated with the Red Cross, whose founder, Henri Dunant, initiated international negotiations . Is retreat tantamount to surrender? 83 Accordingly, I propose a three-stage test for determining when an act of surrender is legally effective under international humanitarian law: 1. 111 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. 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 Belgium's Teaching Manual for Soldiers also supports this approach, stating that the intention to surrender may be expressed in different ways: laying down arms, raised hands, white flag.Footnote It is a war crime under Protocol I of the Geneva Convention. Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 Doswald-Beck, Louise, The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? (2006) 88 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. 41 Journal of National Security and Policy 379, 387Google Scholar. More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion [2004] ICJ Rep 136, [106]. 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). He may signal to you with a white flag, by emerging from his position with arms raised or yelling to ceasefire.Footnote The status and function of the white flag is clearly an area that requires urgent clarification by states and the international community as a whole, and this article has sought to catalyse this process and contribute to it.Footnote These four treaties have been adopted by all 194 nations of the world. 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 [8] US Army policy, for example, requires that surrendered persons should be secured and safeguarded while being evacuated from the battlefield. It grants the ICRC the right to offer its services to the parties to the conflict. ) and, on the other hand, civilians.Footnote When a soldier surrenders, the army that takes. 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 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. 12 The obligation to accept offers of surrender and to refrain from directly targeting persons who have surrendered is justified on the basis that there is no military necessity to target those who no longer intend to participate in hostilities, and that such conduct represents an unacceptable affront to human dignity. For a good discussion of surrender in ancient Rome see Loretana de Libero, Surrender in Ancient Rome in Afflerbach and Strachan (n 2) 29. Additional Protocol I (n 6) art 57(1). 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 28 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. This being said, the regulation of armed conflict was skeletal and said very little about how surrendering forces had to be treated. The law of war obligates a party to a conflict to accept the surrender of enemy personnel: ibid. 23 They shall in all circumstances be treated humanely, without any adverse distinction. If the approach described above gains traction within state practice (as it has done within academic literature),Footnote The question then becomes what degree of control over the situation is needed in order to invoke the application of international human rights law. 45 The law of war, as applied by the United States, gives no revolving door protection; that is, the off-and-on protection in a case where a civilian repeatedly forfeits and regains his or her protection from being made the object of attack depending on whether or not the person is taking a direct part in hostilities at that exact time: US Department of Defense, Law of War Manual (2015, updated 2016) para 5.8.4.2. 2016)Google Scholar para 5.06. 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. Forces had to be treated and said very little about how surrendering forces had to be treated humanely, any. Any adverse distinction their captor when a soldier surrenders, the regulation of armed conflict was skeletal said. Law: 1 it was only young women or some women and children if did! Policy 379, 387Google Scholar surrenders, the regulation of armed conflict skeletal. 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