false surrender geneva convention
Lubell, Noam, Challenges in Applying Human Rights Law to Armed Conflict (2005) 87 indicating that such conduct achieves sufficient support among states to amount to a legally recognisable act of surrender under relevant treaty and customary international humanitarian law.
As a result, they re-emerge as a threat to military security and the opposing force is justified in making them the object of attack. Source: Law Reports of Trials of War Criminals.
Given their legal immunity from direct targeting, civilians do not have the legal capacity to surrender.
According to the Israeli Military Manual, it is absolutely forbidden in the strongest terms to attack such a combatant [one who has surrendered]. No clear rule exists as to what constitutes surrender. 75
See generally Perhaps the thorniest issue is what positive act (or acts) are recognised by international humanitarian law as expressing an intention to surrender.
Schmitt, Michael N, Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance (2010) 50 Any males of fighting age or the elderly that fell into band warriors power were simply killed.
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.
130 7 1981) 50910Google Scholar. 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.
35 As civilians do not directly participate in hostilities they do not pose a threat to the military security of the opposing party. 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. The law of war obligates a party to a conflict to accept the surrender of enemy personnel: ibid.
21 February 2018. From a survey of military manuals I have revealed that the laying down of weapons and the raising of hands is a widely accepted method of indicating such an intention under both conventional and customary international humanitarian law. This has been consistently interpreted as imposing a treaty obligation upon parties to this Protocol to accept valid offers of surrender.Footnote
99.
68 33 International tribunals have determined that during times of international and non-international armed conflict international humanitarian law does not displace the obligations imposed upon states by international human rights law.Footnote 117. Article 4A lists the categories of persons who, if they fall into the power of the enemy, are prisoners of war. as they directly participate in hostilities, and this includes the period during which the civilian is preparing to engage in conduct amounting to direct participation, actually engages in hostilities, and in the immediate aftermath of the hostile act being perpetrated.Footnote 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.
82
In the context of war, perfidy is a form of deception in which one side promises to act in good faith (such as by raising a flag of truce) with the intention of breaking that promise once the unsuspecting enemy is exposed (such as by coming out of cover to take the "surrendering" prisoners into custody). 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. At first the principle of humanity was used more generally to re-orientate the jurisprudential basis of European societies away from notions of divine right and religious privilege towards the values of equality, tolerance and justice.
49 International Review of the Red Cross 599, 606CrossRefGoogle Scholar.
It is not just a matter of whether he "immediately surrendered""clearly expressing an intention to surrender" is only one of three conditions under this rule. 24 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.
69
Close this message to accept cookies or find out how to manage your cookie settings. 138 Lubell (n 80) 750. William Fenrick, Specific Methods of Warfare in Elizabeth Wilmshurst and Susan Breau (eds), ICRC Study on Customary International Humanitarian Law (Cambridge University Press 2007) 141.
Conventions Approved. 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. 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. It is well established that feigning surrender in order to invite the confidence of an enemy is a perfidious act. (underscore in the original). 53 If in command, I will never surrender the members of my command while they still have the means to resist".
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. 111 9
It is inconvertible that under international humanitarian law it is unlawful to directly target an enemy who has surrendered. 81 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.
[4][5][6], At the Dachau Trials, the issue of whether the donning of enemy uniforms to approach the enemy without drawing fire was within the laws of war was established under international humanitarian law at the trial in 1947 of the planner and commander of Operation Greif, Otto Skorzeny. 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.
Presumably, surrendered persons have only to comply with reasonable demands of their captor: captors cannot require their captives to undertake conduct that exposes them to danger and, if they refuse to comply, determine that they have committed a hostile act and are therefore liable to attack.
113.
Carnahan, Burrus M, Lincoln, Lieber and the Laws of War (1998) 92 36 This rather simplifies the picture because there is evidence that the Romans formulated rudimentary laws of war, such as the prohibition against the use of concealed, barbed and poisoned weapons and the prohibition against attacking religious figures.Footnote
If the rationale underlying the rule of surrender is that there is no military necessity to attack persons who have expressed the intention to no longer directly participate in hostilities, then it follows that it is only those persons who directly participate in hostilities who possess the legal capacity to surrender under international humanitarian law. It does not necessarily indicate as it is often believed an intention to surrender.Footnote 122 Although formally the purpose of art 4A is to delineate the criteria for determining who can be regarded as prisoners of war under the law of international armed conflict, it has become well accepted that this provision also provides the criteria for determining lawful combatancy during international armed conflict: 22
Disapproval of perfidy was part of the customary laws of war long before the prohibition of perfidy was included in Protocol I. Perfidy constitutes a breach of the laws of war and so is a war crime, as it degrades the protections and mutual restraints developed in the interest of all parties, combatants and civilians. 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. This issue is relevant because during the First Gulf War, American forces overran Iraqi troops near the KuwaitIraq border and American forces continued to directly target Iraqi forces even though they were in clear retreat. Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits [2001] ICJ Rep 40, [205]. 15 11 and gives no conclusive answer as to what human rights law requires of government authorities using force against fighters.Footnote In naval warfare, the traditional sign of surrender is to strike the flag: Program on Humanitarian Policy and Conflict Research, 27
It was adopted by 12 European countries. Its customary status during non-international armed conflict is confirmed by ICRC Study (n 6) r 15.
GC III (n 50) art 4A.
As Polybius put it, [t]he result was that the Romans enter into possession of everything and those who surrender remain in possession of absolutely nothing.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). The wording of this provision is repeated verbatim in Article 8(2)(b)(vi) of the ICC Statute,Footnote Armed conflict in ancient Greece was therefore largely unregulated and, in particular, the Greek code of honor offered no protection to surrendering soldiers.Footnote 60. Protocol I Additional to the Geneva Conventions of 12 August 1949, emblem of the red cross, red crescent or red lion and sun or of other emblems, "New evidence challenges claim Tom Barry invented story of false surrender at Kilmichael", "Kilmichael Ambush 28 November 1920 | Irish News Archives", "The Kilmichael ambush and the outer limits of Irish historical revisionism", Vol.
While the notion of attempting to escape is relatively self-explanatory, what constitutes a hostile act is far from clear. 59 120, Surrender is a legal exchange constituted by a valid offer and its subsequent acceptance.Footnote See, eg, Human Rights Committee, Suarez de Guerrero (n 82). ICRC Study (n 6) 168. 44 As such, the active hostilities framework [i.e.
US Law of War Manual (n 68) para 5.4.6.3. Additional Protocol II (n 49) art 13(1). [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." Virginia Journal of International Law 795, 798Google Scholar. describes them as those precautions which are practicable and practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations. 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 [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). 9 79 The emergence of knights and, in particular, the code of chivalry that governed their interactions had a considerable impact upon the legal regulation of armed conflict.Footnote 127 Paul Cartledge, Surrender in Ancient Greece in Afflerbach and Strachan (n 2) 15, 21. 45 US Law of War Manual (n 68) para 5.9.3.2.
Very few international treaties have gained this level of support. Journal of National Security and Policy 379, 387Google Scholar. 123 44. 100.
As Lubell explains, [w]hen we actually come to apply human rights law in practice to situations of armed conflict, certain difficulties do appear: 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. 58 97 This is the requirement of Additional Protocol I (n 6) art 57(2)(a)(i), which explains that those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and not subject to special protections but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them.
Yet, the circumstances in which international human rights law is operative during international and non-international armed conflict is far from clear and this is particularly so in relation to the law of targeting.Footnote David Leigh, Iraq War Logs: Apache Crew Killed Insurgents Who Tried to Surrender, The Guardian, 22 October 2010, https://www.theguardian.com/world/2010/oct/22/iraq-war-logs-apache-insurgents-surrender. 4. Where conflict occurs the principles of military necessity and humanity have to be delicately balanced, with rules being produced that reflect a dialectical compromise between these two opposing forces.Footnote ) and, on the other hand, civilians.Footnote Both Additional Protocols to the 1949 Geneva Conventions Footnote 49 impose an obligation upon state parties to refrain from making the object of attack a person who has expressed an intention to surrender. The US Law of Armed Conflict Deskbook also rejects the use of the white flag as being declarative of surrender, and discusses the use of the white flag in the context of the 1982 Falklands Conflict:Footnote 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.
Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 26 January 1910) Martens Nouveau Recueil (ser 3) 461.
United Kingdom, Joint Service Manual of the Law of Armed Conflict (2004) paras 10.510.5.1. As a result, state practice makes it clear that the simple fact that troops are retreating does not demonstrate an intent to surrender.Footnote 51
being groups who exhibit a sufficient degree of military organization and belong to a party to the conflictFootnote
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. The notion of fighters also includes those members of an organised armed group that is party to a non-international armed conflict and who possess a continuous combat function.Footnote If they did take prisoners it was only young women or some women and children.
Similarly, the Dominican Republic's Military Manual accepts that once a white flag is waved this signals an intent to surrender and the opposing force must cease firing from that moment: The enemy soldier may reach a point where he would rather surrender than fight. [I]t is always permissible due to military necessity to attack the enemy's combatants.
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].
12 45 85 Where persons clearly indicate that they no longer intend to participate in hostilities, they no longer represent a threat to military security and thus there is no military necessity to target them.Footnote 10 [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. Henderson, Ian, The Contemporary Law of Targeting (Martinus Nijhoff In 1864, he helped establish the first Geneva Convention, an international treaty that required armies to care for the sick and wounded on the battlefield.
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.
Gleb Garanich/Reuters. They were killed by enemy fire in a disputed incident. 20
It is recognized by military professionals that a retreating force remains dangerous. The rationale underlying this rule can be explained on the basis that where it is discernible that persons have parachuted from an aircraft in distress and are not engaging in hostile acts, this is regarded as a form of positive conduct that signals that they no longer represent a threat to military security and thus there is no military necessity to directly target them. 17 Bradbury, Jim, The Medieval Siege (The Boydell Press
62 21 General de Brigada Pablo Duarte, Secretara de Estado de las Fuerzas Armadas (1980) 67.
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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.
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. Thus, rather than imposing restraint, military necessity acted as a permissiveFootnote
In its judgement, the tribunal noted that the case did not require that the tribunal make findings other than those of guilty or not guilty and so no safe conclusion could be drawn from the acquittal of all accused. it is difficult to draw firm conclusions. Holger Afflerbach and Hew Strachan, A True Chameleon?
52 Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians.
The Convention adopted in 1949 takes account of the experiences of World War II.
See, eg, Doswald-Beck (n 70), Lubell (n 80), Sassli and Olson (n 71), Murray and others (n 86) para 511. Such limited state practice, of course, creates difficulties in attempting to define the contours of a rule of treaty and customary law. 91
Additional Protocol I (n 6) art 51(3). 136 23 [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. (2) Is it reasonable in the circumstances for the opposing force to discern the offer of surrender? [11], While not a formal military law, the Code of the US Fighting Force disallows surrender unless "all reasonable means of resistance [are] exhausted and certain death the only alternative": the Code states, "I will never surrender of my own free will.
74 Such conduct is known as perfidy. Also in recent events we haven't been fighting an organized enemy so they . Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC
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.
135 As the ICTY explained in the Tadi judgment, when identifying state practice in the context of customary international humanitarian law reliance must primarily be placed on such elements as official pronouncements of States, military manuals and judicial decisions: ICTY, Prosecutor v Tadi, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-AR72, Appeals Chamber, 2 October 1995, [99]. During the Battle for Goose Green, some Argentinean soldiers raised a white flag. The 1st Marine Division and its 4,000 attached U.S. Army forces and British Royal Marines, in the famous 1950 march out of the Chosin Reservoir in North Korea, fighting outnumbered by a 4:1 margin, turned its retreat into a battle in which it defeated the 20th and 26th Chinese Armies trying to annihilate it. 17.
Resolving the question of the type of conduct that expresses an intention to surrender would therefore produce the collateral benefit of also clarifying the rule relating to perfidy.
107, However, not all states identify the white flag as being indicative of an intention to surrender. If the approach described above gains traction within state practice (as it has done within academic literature),Footnote 103 The ICC Statute goes farther than the Fourth Geneva Convention. The act of surrender, therefore, is a continuing obligation insofar as the persons surrendering must continually comply with the demands of their captor.
43 Clara Barton served as Red Cross president for 23 years . Article 41(1) further explains that a person hors de combat shall not be made the object of attack; Article 41(2) explains that a person is hors de combat if he clearly expresses an intention to surrender. In those instances where civilians do directly participate in hostilities they emerge as a threat to the opposing force and thus the notion of military necessity justifies their direct targeting.Footnote 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. Tieya, Wang and Min, Wei, International Law (Falu Chubanshe 139. Initially, the Manual explains that:Footnote
87 The following are examples of such ruses: the use of camouflage, decoys, mock operations and misinformation.
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.
64
48
The US Law of War Manual reiterates this view: Enemy combatants remain liable to attack when retreating.
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 Put otherwise, conduct that was not necessary to hasten the war's end was prohibited. 2009) 22Google Scholar. 67 101 Also, must all offers of surrender be accepted or are there circumstances in which an offer of surrender may permissibly be refused? 107 108 1985) 6Google Scholar. 137
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 of international humanitarian law because it is the [principal] device for containing destruction and death in our culture of war.Footnote
91 Murray, Daragh and others, Practitioners Guide to Human Rights Law in Armed Conflict (Oxford University Press For this reason it is a cardinal principle and intransgressible rule of international humanitarian law that civilians cannot be directly targeted.Footnote With regard to the law applicable during non-international armed conflict, combatancy status does not exist because states are loathe to confer on insurgents the combatancy privilege that is available in international armed conflict namely, immunity from prosecution under national law.Footnote
Incidentally, under international humanitarian law (including the law of international and non-international armed conflict (see Additional Protocol I (n 6) art 37(1) and ICRC Study (n 6) r 65) and international criminal law (during both international and non-international armed conflict see respectively ICC Statute (n 51) art 8(2)(b)(xi) and 8(2)(e)(ix)) it is unlawful to invite the confidence of adversaries with the purpose of injuring or capturing them. 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. 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
Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (Cambridge University Press [9], The Third Geneva Convention states that prisoners of war should not be mistreated or abused. In sum, persons who demonstrate an intent to surrender create a rebuttable presumption that they are hors de combat and no longer a threat to the enemy. What are feasible precautions is difficult to define but Article 3(4) of the Convention on Conventional Weapons 1980Footnote 2. IRA leader Tom Barry claimed in his memoirs, Guerrilla Days in Ireland, that some of the Auxiliaries shouted, "We surrender, we surrender;" when IRA men stood up from their positions, they were fired upon by other Auxiliaries.