During the First Gulf War, US tanks equipped with earthmoving plough blades breached Iraqi defences and then turned and filled in trenches, entombing Iraqi soldiers who had sought to surrender. 7 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. While the notion of attempting to escape is relatively self-explanatory, what constitutes a hostile act is far from clear. and (3) Have surrendered persons unconditionally submitted to the authority of their captor? However, the phraseology of these agreements means that civilians necessarily fall into a residual category of anyone who is not a fighter. 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. 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 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. Have persons who are surrendering unconditionally submitted to the authority of their captor? 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 In land warfare a soldier who wishes to indicate that he is no longer capable of engaging in combat, or that he intends to cease combat, lays down his arms and raises his hands. Additionally, the ICRC Study determined that the content of art 4 is contained (albeit implicitly) in Common Article 3 to the Four Geneva Conventions of 1949, which can be regarded, therefore, as imposing a legal obligation upon state parties to refrain from making the object of attack persons who have surrendered during a non-international armed conflict: ICRC Study (n 6) 165, r 47 and accompanying commentary. In practice, it [the rule of surrender] is one of the most important rules of the Protocol [Additional Protocol I (n 6 below)]: The development of the Geneva Conventions was closely associated with the Red Cross, whose founder, Henri Dunant, initiated international negotiations . 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 The singular term "Geneva Convention" is often used to refer to the agreement of 1949. 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 If Lewis's claim is false, however, the claim itself is dangerous. 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. 117. 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 International Review of the Red Cross 881, 889CrossRefGoogle Scholar. On rare occasions the demands of military necessity converge with humanitarian considerations and prompt the law in the same direction.Footnote 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. 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 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 Put differently, there is a pressing military need to target them directly. Specifically, it prohibits attacks on civilian hospitals, medical transports, etc. Note that the focus of the article is upon the rule of surrender during land warfare in the context of international and non-international armed conflict. They shall in all circumstances be treated humanely, without any adverse distinction. 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. The document has no provisions for punishment, but violations can bring moral outrage and lead to trade sanctions or other kinds of economic reprisals against the offending government. 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 Share and download Popular Stories of Ancient Egypt (Classic Folk and Fairy Tales) for free. 94 Last updates June 10, 2019 by Krystyna Blokhina, International Committee for the Red Cross and Red Crescent, 1952 Commentary on the Geneva Conventions, Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of 12 August 1949, Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, of 12 August 1949, Geneva Convention relative to the Treatment of Prisoners of War, of 12 August 1949, Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, of 8 June 1977, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, of 8 June 1977, Reference Guide to the Geneva Conventions, List of Nations Ratifying or are Otherwise Party to the Geneva Conventions and/or Protocols, ICL Practice Relating to Rule 157, Jurisdiction over War Crimes, Category: International, Transnational, and Comparative Law, Geneva Conventions and their additional protocols, Disputes arising under the Conventions or the Protocolsare settled by courts of the member nations (Article 49 of Convention I) or by international. 77 Russian Defense Ministry spokesman Maj. Gen. Igor Konashenkov declined Sunday to give numbers on how many Russian troops had been killed or captured but said more Ukrainians than Russians had been. 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. Convention I: This convention protects wounded and infirm soldiers and ensures humane treatment without discrimination founded on race, color, sex, religion or faith, birth or wealth, etc. Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 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. No weapons that could screw around with the laws of physics negatively . and IV (1907)Footnote 59, Combatants who wish to surrender must act purposively in order to repudiate the assumption that they represent a threat to military security. Combatants also include those members of irregular armed forces (such as militias and volunteer corps)Footnote The conventional view is that where civilians repeatedly directly participate in hostilities they retain their immunity from direct targeting even during intermissions in direct participation.Footnote and that [t]he hoisting of a white flag has no other legal meaning in the law of war.Footnote 133 August 4, 2011 04:00:00 pm. One would usually expect to find the answers to these questions in those international humanitarian law treaties that contain the rule of surrender. He may signal to you with a white flag, by emerging from his position with arms raised or yelling to ceasefire.Footnote 33 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 24 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 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. 23 From time immemorial, a white flag has been used as a signal of a desire to open communications with the enemy. 11 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? 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 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 In turn, this will allow for the conditions that trigger the obligation to accept offers of surrender under international humanitarian law to be more easily discerned and better understood. US Law of Armed Conflict Deskbook (n 60) 167. Surrender, in military terms, is the relinquishment of control over territory, combatants, fortifications, ships or armament to another power. 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. If they did take prisoners it was only young women or some women and children. 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. 25 It also grantsthe right to proper medical treatment and care. and gives no conclusive answer as to what human rights law requires of government authorities using force against fighters.Footnote As Sassli and Olson explain, case law in this area is clearly contradictoryFootnote When is Surrender Effective under International Humanitarian Law? American Journal of International Law 213, 217CrossRefGoogle Scholar. 128 [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). 103 There were, however, three notable exceptions to this rule. They had held a State Convention in February, at which no openly avowed disunionist appeared. In the words of the Committee, the police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions: Human Rights Committee, Suarez de Guerrero v Colombia, Communication No. Meron, Theodor, The Humanization of Humanitarian Law (2000) 94 2013) 11316Google Scholar. All the wounded, sick and shipwrecked, to whichever Party they belong, shall be respected and protected. 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. And care a white flag has been used as a signal of a desire to open communications the. Notable exceptions to this rule shall be respected and protected, the Humanization of Law. 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