This approach is consistent with the obligation arising under the law of internationalFootnote It is therefore concerning that a number of military manuals erroneously identify the white flag as a sign of surrender under international humanitarian law. 114, In light of this disagreement, Henderson is surely correct in his assertion that [t]he flying of a white flag is not a definite symbol of surrender.Footnote 107, However, not all states identify the white flag as being indicative of an intention to surrender. 32 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 principle and became a license for mischief.Footnote 40 107 24 88 [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. During times of international armed conflict state practice is fairly uniformFootnote IHL is universal: all parties fighting in a conflict are obliged to respect IHL, be they governmental forces or non-State armed groups. 126 In ancient Greece Greek religious beliefs did not give rise to ethical or humanitarian limitations on the conduct of warfare.Footnote Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. 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. 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 02 Jan 2023 05:58:14 48 31 From time immemorial, a white flag has been used as a signal of a desire to open communications with the enemy. Moreover, one would expect to find the answers to these questions in the military manuals that states produce in order to guide the conduct of their armed forces during times of armed conflict and to streamline their conduct in conformity with international humanitarian law. 2016) 4951 Feature Flags: { Hans-Henning Kortm, Surrender in Medieval Times in Afflerbach and Strachan (n 2) 41, 47. 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. soldiers wanted to surrender, negotiate or what? and IV (1907)Footnote 100 The principle of military necessity therefore failed to provide an effective mechanism to quell the savagery and brutality associated with previous armed conflicts. 21 Ruses of war are not prohibited. 55 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. Published online by Cambridge University Press: Some Concluding Remarks on the History of Surrender in Afflerbach and Strachan (n 2) 435, 442. 16 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). He had passed on to his men the warning of German legal experts that if they fought in US uniforms, they would be breaking the laws of war. 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 As the International Criminal Tribunal for the Former Yugoslavia (ICTY) would later explain, [t]he essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of human dignity in every person The general principle of respect for human dignity is the very raison dtre of international humanitarian law and human rights law: ICTY, Prosecutor v Furundzija, Judgment, IT-95-17/I-T, Trial Chamber II, 10 December 1998, [183]. United Kingdom, Joint Service Manual of the Law of Armed Conflict (2004) paras 10.510.5.1. Total loading time: 0 40 St Augustine's notion of just war implied that resort to war was subject to limitations and that the decision to declare war required justification.Footnote In its legal dimension, where a valid offer of surrender is communicated to and received by an opposing force, it is legally obligated to accept that offer and refrain from making surrendered persons the object of attack.Footnote and. Instead, states regard insurgents as criminals and terrorists who must be held criminally responsible for their violent and seditious conduct. This has been consistently interpreted as imposing a treaty obligation upon parties to this Protocol to accept valid offers of surrender.Footnote 50. Article 4A lists the categories of persons who, if they fall into the power of the enemy, are prisoners of war. 47 However, some historians have claimed that Barry invented the story of the false surrender in order to justify the killing of the entire unit. Section 3 explores state practice with a view to identifying when an offer of surrender is effective under international humanitarian law, and proposes a three-stage test that can be used to determine whether an enemy has extended a valid offer of surrender. 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. 15 Virginia Journal of International Law 795, 798Google Scholar.

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 This led Barry to not believe the Auxiliaries when, later in the battle, they attempted to surrender: all 18 were shot and left for dead. There is one instance where a party to an armed conflict is legally required to offer opposing forces the opportunity to surrender before direct targeting can commence. Once forgotten, this move can't be remembered. France's Manual on the Law of Armed Conflict explains that [a]n intention to surrender must be clearly expressed; by raising hands, throwing down weapons or waving a white flag.Footnote 2014) 187, 188Google Scholar. 136 120 Edited by: . 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. Even in the absence of physical apprehension a person can be so utterly in the power of the opposing force that he or she can no longer be regarded as representing a military threat. First, this code of chivalry applied only to interactions between recognised knights. 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. At the level of small units, for example, once an objective has been seized, an attacking force is trained to fire on the retreating enemy to discourage or prevent a counterattack.Footnote It is a war crime under Protocol I of the Geneva Convention. 2. 37, The view that surrendered forces should not be made the object of attack is supported by the principles of military necessity and humanity. Have persons who are attempting to surrender engaged in a positive act which clearly indicates that they no longer intend to directly participate in hostilities? Hostname: page-component-546b4f848f-fhndm 102 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. The head of Mariupol's Police Patrol, he was among hundreds to surrender from the Russian siege of the Azovstal steel mill on the orders of the Ukrainian president a year ago and was close to death on the day he was exchanged for Russian . 14 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. Paul Cartledge, Surrender in Ancient Greece in Afflerbach and Strachan (n 2) 15, 21. 110 69 Its customary status during non-international armed conflict is confirmed by ICRC Study (n 6) r 15. [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. Also in recent events we haven't been fighting an organized enemy so they . IX, 1949: Trial of Otto Skorzeny and others, "International Law on Use of Enemy Uniforms As a Stratagem and the Acquittal in the Skorzeny Case", UK's Geneva Conventions (Amendment) Act 1995 which bans perfidy, https://en.wikipedia.org/w/index.php?title=Perfidy&oldid=1146610770, This page was last edited on 25 March 2023, at 23:10. 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. 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 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. Another important question is whether combatants are required to offer vanquished forces the opportunity to surrender before direct targeting can commence? See generally 2.

78, International human rights law may muddy the waters here. Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 138 State practice (coupled with opinio juris) is also key to interpreting obligations imposed by customary international law.Footnote 41 While the notion of attempting to escape is relatively self-explanatory, what constitutes a hostile act is far from clear. 77 139 33 Guidance on how a person expresses an intention to surrender is provided by the Official Commentary to Article 41(2) of Additional Protocol I:Footnote They were killed by enemy fire in a disputed incident. ICRC Study (n 6) r 47. 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. 3. 106 The Begun Center had provided evaluation services for the FSS program and been onsite at over . The ICRC, for example, expressly considers and then rejects this contention: Melzer (n 57) 70. However, where persons parachute from an aircraft and are not in distress, or are in distress but nevertheless engage in a hostile act, a threat to military security is present and they may be made the object of attack. Given their legal immunity from direct targeting, civilians do not have the legal capacity to surrender. As civilians do not directly participate in hostilities they do not pose a threat to the military security of the opposing party. 56

65 Similarly, although containing the rule of surrender, Common Article 3 and Article 4 of Additional Protocol II do not specify the conditions that constitute an effective surrender. 66 This is significant because where state practice is widespreadFootnote Lubell (n 80) 750. The act of surrender possesses a political, military and legal dimension. 36 The upshot of this is that non-state actors such as organised armed groups that are party to a non-international armed conflict cannot be the bearer of obligations under international human rights law: Philip Alston, The Not-a-Cat Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors? in Philip Alston (ed), Non-State Actors and Human Rights (Oxford University Press 2005) 3.

Traditionally, a surrender ceremony was accompanied by the honors of war. Civilians enjoy protection from direct targeting under international humanitarian law but can be made the object of attack during such time as they directly participate in hostilities.Footnote 63 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 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 Other states similarly reject the contention that the white flag indicates an intention to surrender. 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. 1 As Sassli and Olson explain, case law in this area is clearly contradictoryFootnote In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. 101 These conflicts were usually fought without mercy because the initiation of armed conflict was regarded as triggering total war, a concept that described military conflict in which contenders [were] willing to make any sacrifice in lives and other resources to obtain a complete victory.Footnote 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. 61 It is prohibited to order that there shall be no survivors. 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. 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 which stipulates that in times of an international armed conflict it is a war crime to kill or wound a person who, having laid down his arms or having no means of defence, has surrendered at discretion. During the American Civil War the US government charged the renowned American-German jurist Francis Lieber to draft a document which contained the basic principles and accepted rules of war on land to regulate the conduct of the Union's military forces during its armed conflict with the Confederate army. 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. ICTY, Prosecutor v Gali, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. At least for the purpose of these international legal rules, the laying down of weapons is an effective method through which to express an intention to surrender. 70 20 15 However, most agree surrender means ceasing resistance and placing oneself at the captor's discretion: US Law of Armed Conflict Deskbook (n 60) 138. 58 Where a person engages in a positive act that reveals to the opponent that he or she no longer intends to directly participate in hostilities, the opposing force is legally obligated to accept that offer of surrender and refrain from making such a person the object of attack.Footnote The target with Its disheveled hair include the Hague Convention of 1907 and the better-known Geneva Conventions of.! User pretends to bow Its head, but then it stabs the target with Its hair... Also states that combatants can not be prosecuted just for fighting in a war better-known Geneva of. 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Meron, Theodor, the Humanization of Humanitarian Law ( 2000 ) 94 115 false surrender geneva convention one group of Argentines attempting. The opposing party at over Law, including the relevant commentaries, nor military manuals that!
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 So, even if one were to disregard the "long time ago" and "far far away", perfidy wasn't even officially considered a war crime until 0 BBY. 72 Marsh, Jeremy and Glebe, Scott L, Time for the United States to Directly Participate (2011) 1 49 6 Yoram Dinstein, Military Necessity, Max Planck Encyclopedia of Public International Law, September 2015, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e333. 82

explains that it is prohibited [t]o kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion. 38 Meron, Theodor, The Humanization of Humanitarian Law (2000) 94 115, One final question remains. Some of the outcomes of the Geneva Convention include the protection of the sick and wounded during land conflict and at sea, treatment of prisoners of war, and protection of civilians during time of war. and non-international armed conflictFootnote Reply . When is Surrender Effective under International Humanitarian Law? 1987) 480Google Scholar. 118

[3] Normally, a surrender will involve the handing over of weapons; the commanding officer of a surrendering force symbolically offers his sword to the victorious commander. 90, In normative terms, commentators have increasingly argued that whenever a state has enough control over a particular situation to enable it to detain individuals, then such an attempt must be made before force can be used, and non-lethal force must be favoured if possible.Footnote [4] Flags and ensigns are hauled down or furled, and ships' colors are struck. Neither treaty law, including the relevant commentaries, nor military manuals indicate that retreat is indicative of surrender. See, eg, ECtHR, McCann v United Kingdom, App no 18984/91, Judgment, 5 September 1995, paras 200205. 104 130 56 International Review of the Red Cross 881, 889CrossRefGoogle Scholar. 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. To illustrate, it may not be reasonable or feasible to expect a combatant or fighter who engages his or her enemies at speed and at night to identify an offer of surrender and, as a result, refrain from making them the object of attack. for this article. Ask the participants if they can tell you what they mean in the law of armed conflict. 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. 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 hasContentIssue false, The Legal Development of the Rule of Surrender. 196 countries have ratified them, no other international treaty has . 8 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. 2013) 1Google Scholar, para 109. General de Brigada Pablo Duarte, Secretara de Estado de las Fuerzas Armadas (1980) 67. See generally Thus, the test imposed by international humanitarian law is whether a reasonable combatant operating in those circumstances would have been expected to discern the offer of surrender. progression include the Hague Convention of 1907 and the better-known Geneva Conventions of 1949. 16 Its customary status during international armed conflict is confirmed by ICRC Study (n 6) r 15. It is also prohibited to misuse deliberately in an armed conflict other internationally recognized protective emblems, signs or signals, including the flag of truce, and the protective emblem of cultural property. As Pictet explains, [i]n the earliest human societies, what we call the law of the jungle generally prevailed; the triumph of the strongest or most treacherous was followed by monstrous massacres and unspeakable atrocities. 12 Furthermore, the Rome Statute establishing the International Criminal Court (ICC Statute) determines that in times of internationalFootnote Fighters are assumed to be continually participating directly in hostilities (even during lulls in participation) and the demands of military necessity justify their direct targeting. In its military context the act of surrender denotes that the person surrendering is no longer engaged in hostilities: that he or she is hors de combat.Footnote 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. 2013) 11316Google Scholar. See, eg, Human Rights Committee, Suarez de Guerrero (n 82). 46 Sandoz, Yves, Swinarski, Christophe and Zimmermann, Bruno, Commentary to Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 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 43 Combatants also include those members of irregular armed forces (such as militias and volunteer corps)Footnote Draper, Gerald, The Interaction of Christianity and Chivalry in the Historical Development of the Law of War (1965) 5 1 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 25 Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press Loading. Very few international treaties have gained this level of support. The user pretends to bow its head, but then it stabs the target with its disheveled hair. 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 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. This is so because an individual soldier will always be adding to the military capacity of the enemy:
Thus, persons who refuse to obey demands to kneel or to lie on the ground, place their hands behind their back, remain silent, stand still and so on, do not submit to the authority of their opponent and do not surrender for the purpose of international humanitarian law. The Laws of War on Land, 9 September 1880 (the Oxford Manual), art 9(b). Total War, Encyclopedia Britannica Online, 2015, https://www.britannica.com/topic/total-war. 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. Moreover, to target persons who have placed themselves outside the theatre of war constitutes an unacceptable and indefensible affront to human dignity and is incongruous with the principle of humanity.Footnote Put differently, there is a pressing military need to target them directly. The Third Geneva Convention also states that combatants cannot be prosecuted just for fighting in a war. Apparently, one group of Argentines was attempting to surrender, but not the other group. 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 Moving forward, the next question that needs to be addressed is the nature of the positive act that persons must exhibit in order to reveal an intention that they no longer intend to directly participate in hostilities. In lay terms many are likely to regard the waving of the white flag as a widely recognised method of indicating a desire to surrender. Journal of National Security and Policy 379, 387Google Scholar. 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 He may signal to you with a white flag, by emerging from his position with arms raised or yelling to ceasefire.Footnote 85 For this reason it is a cardinal principle and intransgressible rule of international humanitarian law that civilians cannot be directly targeted.Footnote

50 The law of international armed conflict defines civilians in negative terms as those persons who do not qualify as combatants.Footnote and gives no conclusive answer as to what human rights law requires of government authorities using force against fighters.Footnote and that [t]he hoisting of a white flag has no other legal meaning in the law of war.Footnote 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. The US explains that [s]urrender may be made by any means that communicates the intent to give up.