The first Convention was initiated by what is now the International Committee for the Red Cross and Red Crescent (ICRC). 2009) 8687 34 14 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. 119 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. Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? Indeed, surrender is one of the most important rulesFootnote The picture is more complex in relation to the white flag. 75 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. In the Court's often quoted dictum:Footnote 74 1998)Google Scholar. Every Statebound by the treaties is under the legal obligation to search for and prosecute those in its territory suspected of committing such crimes, regardless of the nationality of the suspect or victim, or of the place where the act was allegedly committed. 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 25 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. See generally 132 Indeed, I know of no pre-European contact bands that took male adults alive: ibid 8. First, the article situates surrender within its broader historical and theoretical setting, tracing its legal development as a rule of conventional and customary international humanitarian law and arguing that its crystallisation as a law of war derives from the lack of military necessity to directly target persons who have placed themselves outside the theatre of armed conflict, and that such conduct is unacceptable from a humanitarian perspective. Most of us can still recall that false dawn, that phase of hope. 28 They shall in all circumstances be treated humanely, without any adverse distinction. However, because military necessity was defined so broadly (securing the ends of the war) it essentially became a doctrine of deference to military judgment about what is really militarily necessary.Footnote It may be reasonable, for example, for the commander to utilise readily available equipment (such as night vision goggles or high performance binoculars) to check whether the enemy has expressed an intention to surrender before they are engaged, provided, of course, that the time spent preparing the equipment or using it does not compromise military objectives. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects (as amended 21 December 2001) (entered into force 2 December 1983) 1342 UNTS 137. 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. and non-international armed conflictFootnote The ICRC's Interpretive Guidance provides a fuller discussion of when a person can be regarded as directly participating in hostilities: Melzer (n 57) 4164. Conventions Approved. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. 23 46 Like Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales)? However, rather than engaging in an intensive analysis of the rule of surrender during land warfare, Robertson's contribution is a case study that focuses upon whether Iraqi soldiers manning oil platforms during the First Gulf War had effectively expressed an intention to surrender under international humanitarian law before they were attacked by US helicopters. 136 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: When a soldier surrenders, the army that takes. 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. The Geneva Conventions are a series of treaties on 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. 97 27 O'Connell, Mary Ellen, Historical Development and Legal Basis in Fleck, Dieter (ed), The Handbook of International Humanitarian Law (Oxford University Press 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 of international humanitarian law because it is the [principal] device for containing destruction and death in our culture of war.Footnote Article 3 of the Geneva Conventions covered, for the first time, situations of non-international armed conflicts. Schedule 1 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949. This approach is consistent with the obligation arising under the law of internationalFootnote Published online by Cambridge University Press: This is so because an individual soldier will always be adding to the military capacity of the enemy: Italy is perhaps the only country whose flag. [4], When the parties agree to terms, the surrender may be conditional; that is, the surrendering party agrees to submit only after the victor makes certain promises. which indicates in an absolutely clear mannerFootnote 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 139. 122. 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. The general view is that international human rights law only imposes obligations upon states. [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). We use cookies to distinguish you from other users and to provide you with a better experience on our websites. It also grantsthe right to proper medical treatment and care. In 1907, the international community convened the first of a series of diplomatic conferences that endeavored to codify the "laws and customs of war." The first of these conferences was the 1907. As Lubell explains, [w]hen we actually come to apply human rights law in practice to situations of armed conflict, certain difficulties do appear: 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 The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers? 49 107, However, not all states identify the white flag as being indicative of an intention to surrender. 2. Although r 15 of the ICRC Study (n 6) requires precautions to be taken to avoid or minimise incidental loss of civilian life, injury to civilians and damage to civilians, r 15 should be read as an obligation to avoid or minimise harm to non-military objects generally (including those hors de combat). Additional Protocol I (n 6) art 51(3). 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. 44 86 38 r.j.buchan@sheffield.ac.uk. Robertson, Horace, The Obligation to Accept Surrender (1995) 68 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. Furthermore, the Rome Statute establishing the International Criminal Court (ICC Statute) determines that in times of internationalFootnote Citing the numerous manuals that impose an obligation upon armed forces to accept valid offers of surrender, Rule 47 of the customary international humanitarian law study by the International Committee of the Red Cross (ICRC) explains that the rule of surrender is a principle of customary international law applicable during international and non-international armed conflict. 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. 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 This incident emphasizes the rule that the white flag indicates merely a desire to negotiate, and its hoister has the burden to come forward. 117 However, the phraseology of these agreements means that civilians necessarily fall into a residual category of anyone who is not a fighter. 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. 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 In practice, it [the rule of surrender] is one of the most important rules of the Protocol [Additional Protocol I (n 6 below)]: International humanitarian law nevertheless requires the commander to take all reasonable and feasible measures to ensure that the targets remain permissible objects of attack before launching an offensive. US Law of War Manual (n 68) para 5.9.3.2. 41 118 82, In the Nuclear Weapons advisory opinion the ICJ opined that during times of armed conflict (presumably encompassing both international and non-international armed conflict) the legality of the use of lethal force must be determined according to the applicable lex specialis meaning that the law governing a specific subject matter takes precedence over law that regulates general matters where there is inconsistency between themFootnote However, most agree surrender means ceasing resistance and placing oneself at the captor's discretion: US Law of Armed Conflict Deskbook (n 60) 138. Specifically, it required POWs to give only their names, ranks,and serial numbers to their captors. This was known as the doctrine of dedito: as soon as opposing forces fell into the hands of the Romans they no longer technically existed and their Roman captors could do with their captives as they pleased. United Nations | International Residual Mechanism for Criminal Tribunals UN IRMCT. It requires humane treatment for all persons in enemy hands, without discrimination. 5 Feature Flags: { 78, International human rights law may muddy the waters here. 29 7 40 As Sassli and Olson explain, case law in this area is clearly contradictoryFootnote 134 2 Lubell (n 80) 750. Henderson (n 55) 88 fn 64. in other words, surrendered persons must place themselves at the captor's discretion.Footnote 51 Has data issue: true 130 Scriptures from major world religions, safety tips & reminders, science facts, world cuisine, entertainment, pets, life discussion topics, and more. 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 Sandoz, Swinarski and Zimmermann (n 1) 48687. Additional Protocol I Article 10 of the 1977 Additional Protocol I provides: 1. 19 83 15 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 Such persons are known as parlementaires. Leiden Journal of International Law 315, 343CrossRefGoogle Scholar. The Geneva Convention of 1949 requires signatory nations to pass the necessary laws and "provide effective penal sanctions" for persons "committing, or ordering to be committed" any "grave. The development of the Geneva Conventions was closely associated with the Red Cross, whose founder, Henri Dunant, initiated international negotiations . According to Article 47 of Additional Protocol I of the Geneva convention a mercenary is a person who: 1. 92. US Department of Defense (n 77) 641. 20 for this article. Murray, Daragh and others, Practitioners Guide to Human Rights Law in Armed Conflict (Oxford University Press 123 3, After uncovering the theoretical basis for the rule of surrender and after identifying relevant state practice in the context of this rule, the objective of this article is to fill this gap in scholarship by clarifying the type of conduct that constitutes an act of surrender under international humanitarian law. The Laws of War on Land, 9 September 1880 (the Oxford Manual), art 9(b). 82 Report on UK Practice, 1997, Notes of a Meeting with a Former Director of Army Legal Services, 19 June 1997, Ch 2.1, cited in 59 Thus, rather than imposing restraint, military necessity acted as a permissiveFootnote 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. The principle of military necessity therefore failed to provide an effective mechanism to quell the savagery and brutality associated with previous armed conflicts. 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. 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. Combatants include those persons who are incorporated into the regular armed forces of a state by domestic law. (underscore in the original). This convention produced a treaty designed to protect wounded and sick soldiers during wartime. 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. They organized a provisional govern- ment for service until a permanent one might be established by the people. Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians. ICRC Study (n 6) r 47. 62 2006)Google Scholar. 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. being groups who exhibit a sufficient degree of military organization and belong to a party to the conflictFootnote 57 36 It entered into force 19 June 1931. 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. 67 Geneva Conventions, a series of international treaties concluded in Geneva between 1864 and 1949 for the purpose of ameliorating the effects of war on soldiers and civilians. Seven new ratifications since 2000 have brought the total number of States Party to 194, making the Geneva Conventions universally applicable. 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. 105 It calls on the parties to the conflict to bring all or parts of the Geneva Conventions into force through"special agreements.". Two additional protocols to the 1949 agreement were approved in 1977. 9 11 The Convention on Certain Conventional Weapons (1980) prohibits undetectable weapons (explosive devices made of all plastic which defeat metal detectors); mines and booby traps; firebombs and incendiary weapons; blinding lasers; or recycling used unexploded ordnance from previous wars. As art 38(1)(b) of the Statute of the International Court of Justice explains, customary international law forms on the basis of general [state] practice accepted as law: Statute of the International Court of Justice (entered into force 24 October 1945) 1 UNTS XVI, art 38(1)(b). Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. 116 Under the first and second Geneva Conventions of 1949, the belligerents must protect the sick, wounded and shipwrecked as well as medical personnel, ambulances and hospitals. (3) Have the persons surrendering unconditionally submitted themselves to the authority of their captor? 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 Cte d'Ivoire, Droit de la guerre, Manuel d'instruction, Ministre de la Dfense, Forces Armes Nationales (2007) 4647. The other two are whether he is "in the power of an adverse Party," or . Conduct amounting to direct participation in hostilities includes acts of war which by their nature or purpose are likely to cause actual harm to the personnel or materiel of the enemy armed forces.Footnote
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