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The Rule of Surrender in International Humanitarian Law

  • Russell Buchan (a1)

Abstract

Under international humanitarian law it is prohibited to make the object of attack a person who has surrendered. This article explores the circumstances in which the act of surrender is effective under international humanitarian law and examines, in particular, how surrender can be achieved in practical terms during land warfare in the context of international and non-international armed conflict. 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. Second, after a careful examination of state practice, the article proposes a three-stage test for determining whether persons have surrendered under international humanitarian law: (1) Have persons attempting to surrender engaged in a positive act which clearly reveals that they no longer intend to participate in hostilities? (2) Is it reasonable in the circumstances prevailing at the time for the opposing force to discern the offer of surrender? and (3) Have surrendered persons unconditionally submitted to the authority of their captor?

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References

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1 ‘In practice, it [the rule of surrender] is one of the most important rules of the Protocol [Additional Protocol I (n 6 below)]’: 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 1987) 480.

2 Afflerbach, Holger, ‘Going Down with Flying Colours: Naval Surrender from Elizabethan to Our Own Times’ in Afflerbach, Holger and Strachan, Hew (eds), How Fighting Ends: A History of Surrender (Oxford University Press 2014) 187, 188.

3 The exception here is Robertson, Horace, ‘The Obligation to Accept Surrender’ (1995) 68 International Law Studies 541. 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.

4 ‘In the air, it is generally accepted that a crew wishing to indicate their intention to cease combat, should do so by waggling the wings while opening the cockpit’: Sandoz, Swinarski and Zimmermann (n 1) 487. ‘In naval warfare, the traditional sign of surrender is to strike the flag’: Program on Humanitarian Policy and Conflict Research, Commentary on the HPCR Manual on International Law Applicable to Air and Missile Warfare (Cambridge University Press 2010) 266.

5 Hors de combat is a French phrase commonly used in international humanitarian law to mean ‘out of combat’.

6 For the purpose of clarity, it must be stressed that the legal obligation imposed by the rule of surrender is that opposing forces cannot directly target surrendered persons. The rule of surrender does not require the opposing force to detain surrendered persons as prisoners of war (although they can if they wish). 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.

7 ‘Total War’, Encyclopedia Britannica Online, 2015, https://www.britannica.com/topic/total-war.

8 ‘[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.

9 ‘Many bands took no prisoners, not even children or young women. If they did take prisoners it was only young women or some women and children. Any males of fighting age or the elderly that fell into band warriors’ power were simply killed. Indeed, I know of no pre-European contact bands that took male adults alive’: ibid 8.

10 Pictet, Jean, Development and Principles of International Humanitarian Law (Martinus Nijhoff 1985) 6.

11 Lanni, Adriaan, ‘The Laws of War in Ancient Greece’ (2008) 26 Law and History Review 469, 476–77.

12 Paul Cartledge, ‘Surrender in Ancient Greece’ in Afflerbach and Strachan (n 2) 15, 21. ‘[T]here is little evidence that the archaic and classical Greeks enacted internationally recognised laws governing the practice of warfare’: Ober, Josiah, ‘Classical Greek Times’ in Howard, Michael, Andreopoulos, George J and Shulman, Mark R (eds), The Laws of War: Constraints on Warfare in the Western World (Yale University Press, 1994) 12, 12.

13 Lanni (n 11) 477.

14 Virgil, Aeneid, Book 2, 353–54.

15 See generally Tieya, Wang and Min, Wei, International Law (Falu Chubanshe 1981) 509–10.

16 Polybius, The Histories, Vol VI, Book 36 (William Roger Paton tr, Loeb Classical Library 1927).

17 For a good discussion of surrender in ancient Rome see Loretana de Libero, ‘Surrender in Ancient Rome’ in Afflerbach and Strachan (n 2) 29.

18 Mattox, John Mark, Saint Augustine and the Theory of Just War (Continuum 2006).

19 O'Connell, Mary Ellen, ‘Historical Development and Legal Basis’ in Fleck, Dieter (ed), The Handbook of International Humanitarian Law (Oxford University Press 2013) 1, para 109.

20 See generally Liivoja, Rain, ‘Chivalry Without a Horse: Military Honour and the Modern Law of Armed Conflict’ in Liivoja, Rain and Saumets, Andres (eds), The Law of Armed Conflict: Historical and Contemporary Perspectives (Tartu University Press 2012) 75.

21 While there was a clear obligation not to make objects of attack enemy knights who had surrendered, captured knights could still be sold for ransom: John Gillingham, ‘Surrender in Medieval Europe – An Indirect Approach’ in Afflerbach and Strachan (n 2) 55, 68.

22 Hans-Henning Kortüm, ‘Surrender in Medieval Times’ in Afflerbach and Strachan (n 2) 41, 47.

23 O'Connell (n 19) para 109. See generally Draper, Gerald, ‘The Interaction of Christianity and Chivalry in the Historical Development of the Law of War’ (1965) 5 International Review of the Red Cross 3.

24 ‘But in wars against outsiders, infidels, or barbarians, the West had inherited a brutal legacy from the Romans which they termed bellum romanum, or guerre mortellle, a conflict in which no holds were barred and all those designated as enemy, whether bearing arms or not, could be indiscriminately slaughtered’: Michael Howard, ‘Constraints on Warfare’ in Howard, Andreopoulos and Shulman (n 12) 1, 3.

25 Bradbury, Jim, The Medieval Siege (The Boydell Press 1998).

26 O'Connell (n 19) para 109.

27 Holger Afflerbach and Hew Strachan, ‘“A True Chameleon”? Some Concluding Remarks on the History of Surrender’ in Afflerbach and Strachan (n 2) 435, 442.

28 O'Connell (n 19) para 113.

29 Francis Lieber, ‘Instructions for the Government of Armies of the United States in the Field’, General Order No 100, 24 April 1863 (Lieber Code), art 14.

30 Luban, David, ‘Military Necessity and the Culture of Military Law’ (2013) 26 Leiden Journal of International Law 315, 343.

31 ibid.

32 Carnahan, Burrus M, ‘Lincoln, Lieber and the Laws of War’ (1998) 92 American Journal of International Law 213, 217.

33 ‘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.

34 Luban (n 30) 316.

35 See generally Meron, Theodor, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239. 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 d’être 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].

36 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.

37 Schmitt, Michael N, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50 Virginia Journal of International Law 795, 798.

38 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, 186–87.

39 According to the Israeli Military Manual, ‘it is absolutely forbidden in the strongest terms to attack such a combatant [one who has surrendered]. The moral argument for this is that as long as the soldier is participating in the military effort, he knowingly risks his life. When he is clearly asking to surrender and exit from the fight or while he is incapable of participating in combat actively, there is no moral justification in attacking him, nor is there any military necessity to do so’: Israel, Rules of Warfare on the Battlefield, Military Advocate-General's Corps Command, IDF School of Military Law (2006) 29.

40 Maritime Delimitation and Territorial Questions between Qatar and Bahrain, Merits [2001] ICJ Rep 40, [205].

41 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).

42 Robertson (n 3) 545.

43 As the ICTY explained in the Tadić 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 Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, IT-94-AR72, Appeals Chamber, 2 October 1995, [99].

44 ICRC Study (n 6) r 47. 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.

45 Project of an International Declaration concerning the Laws and Customs of War 1874, adopted by the Conference of Brussels, 27 August 1874 (the Brussels Manual), art 13(d).

46 The Laws of War on Land, 9 September 1880 (the Oxford Manual), art 9(b).

47 Hague Convention (II) with respect to the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land (entered into force 4 September 1900) 26 Martens Nouveau Recueil (ser 2) 949.

48 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.

49 Additional Protocol I (n 6); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (entered into force 7 December 1978) 1125 UNTS 609 (Additional Protocol II).

50 Robertson (n 3) 547. 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. See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (entered into force 21 October 1950) 75 UNTS 31, art 3; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (entered into force 21 October 1950) 75 UNTS 85, art 3; Geneva Convention (III) relative to the Treatment of Prisoners of War (entered into force 21 October 1950) 75 UNTS 135 (GC III), art 3; GC IV (n 6) art 3 (Common Article 3).

51 Rome Statute establishing the International Criminal Court (entered into force 3 September 2002) 2187 UNTS 90 (ICC Statute), art 8(2)(b)(vi).

52 ibid art 8(2)(e)(x).

53 Hilaire McCoubrey and Nigel D White, International Humanitarian Law: The Regulation of Armed Conflict (Dartmouth 1992) 227.

54 Sandoz, Swinarski and Zimmermann (n 1) 487.

55 Additional Protocol I (n 6) art 50(1); ICRC Study (n 6) r 6. ‘[I]t is always permissible due to military necessity to attack the enemy's combatants. This is so because an individual soldier will always be adding to the military capacity of the enemy’: Henderson, Ian, The Contemporary Law of Targeting (Martinus Nijhoff 2009) 8687 .

56 GC III (n 50) art 4A. 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: Dinstein, Yoram, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press 2016) 4951 .

57 Melzer, Nils, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) 22.

58 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. 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: Schmitt, Michael N and Widmar, Eric W, ‘“On Target”: Precision and Balance in the Contemporary Law of Targeting’ (2014) 7 Journal of National Security and Policy 379, 387. Although not a source of law, since its publication the Interpretive Guidance has gained ‘traction’ among states and is thus ‘becoming the authoritative guidance’ on the law of targeting: Marsh, Jeremy and Glebe, Scott L, ‘Time for the United States to Directly Participate’ (2011) 1 Virginia Journal of International Law Online 1, 20.

59 UN General Assembly, Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (18 September 2013), UN Doc A/68/389, para 69.

60 US Law of Armed Conflict Deskbook (International and Operational Department 2015) 78.

61 ‘[A]ll persons who are neither members of the armed forces of a party to the conflict nor participants in a levée en masse are civilians’: Additional Protocol I (n 6) art 50(1).

62 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, paras 78, 79.

63 That civilians can be directly targeted in international armed conflicts where they directly participate in hostilities is expressly mentioned in art 51(3) Additional Protocol I (n 6) and is undoubtedly representative of customary international humanitarian law: HCJ 769/02 Public Committee Against Torture in Israel and Palestinian Society for the Protection of Human Rights and the Environment v Israel and Others ILDC 597 (IL 2006) [2006], para 35.

64 ICTY, Prosecutor v Galić, Judgment, IT-98-29-T, Trial Chamber, 5 December 2003, [48]. The ICRC's Interpretive Guidance provides a fuller discussion of when a person can be regarded as directly participating in hostilities: Melzer (n 57) 41–64.

65 Additional Protocol I (n 6) art 51(3).

66 Melzer (n 57) 65–68.

67 ibid 70.

68 ‘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.

69 The ICRC, for example, expressly considers and then rejects this contention: Melzer (n 57) 70.

70 Doswald-Beck, Louise, ‘The Right to Life in Armed Conflict: Does International Humanitarian Law Provide All the Answers?’ (2006) 88 International Review of the Red Cross 881, 889.

71 Sassòli, Marco and Olson, Laura M, ‘The Relationship between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts’ (2008) 90 International Review of the Red Cross 599, 606.

72 Common Article 3 (n 50); Additional Protocol II (n 49) art 1.

73 Melzer (n 57) 31.

74 ibid 34.

75 For example, the concept of civilian is used in Additional Protocol II (n 49) arts 13 and 17.

76 ibid art 13(3).

77 ‘A combatant force involved in an armed conflict is not obligated to offer its opponent an opportunity to surrender before carrying out an attack’: US Department of Defense, ‘Report to Congress on the Conduct of the Persian Gulf War – Appendix on the Role of the Law of War’ (1992) 31 ILM 612, 641.

78 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. In order to be in the power of an adverse party the person in question does not have to be physically apprehended by the opposing force. 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. In such instances the adverse party is not under an obligation to offer its opponent the opportunity to surrender before direct targeting can commence but, instead, international humanitarian law prohibits the adverse party from making such a person the object of attack.

79 ‘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]. In the Armed Activities case the ICJ held that ‘both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration’: Case concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), Judgment [2005] ICJ Rep 168, [216].

80 As Lubell explains, ‘[w]hen we actually come to apply human rights law in practice to situations of armed conflict, certain difficulties do appear’: Lubell, Noam, ‘Challenges in Applying Human Rights Law to Armed Conflict’ (2005) 87 International Review of the Red Cross 737, 738.

81 See, eg, ECtHR, McCann v United Kingdom, App no 18984/91, Judgment, 5 September 1995, paras 200–205.

82 For example, the Human Rights Committee determined that Colombia had failed to comply with its international human rights law obligations when using force against members of an organised armed group because Colombian forces did not offer their opponents the opportunity to surrender before targeting (and killing) them. 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. R.11/45, 31 March 1982, UN Doc Supp No 40 (A37/40), para 13.2. 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 August–7 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’.

83 ‘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.

84 Nuclear Weapons (n 62) [25].

85 Sassòli and Olson (n 71) 603.

86 ‘For combatants in international armed conflicts, international humanitarian law is generally considered to constitute the lex specialis in relation to the amount of force to be used against enemy combatants’: UN Human Rights, Office of the High Commissioner, International Legal Protection of Human Rights in Armed Conflict (United Nations 2011) 67. ‘As such, the “active hostilities” framework [i.e. international humanitarian law] regulates the use of force against all combatants, military objectives, members of an armed group belonging to a party to the [international armed] conflict, and individuals directly participating in hostilities, irrespective of their location to any active battlefield’: Murray, Daragh and others, Practitioners’ Guide to Human Rights Law in Armed Conflict (Oxford University Press 2016) para 5.06.

87 Case of Abella v Argentina (Tabala) (1997) Inter-Am Ct HR, Case No 11.137, Report No 55/97, 18 November 1997.

88 See, eg, Human Rights Committee, Suarez de Guerrero (n 82). 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 Sassòli and Olson (n 71) 611–12.

89 Sassòli and Olson, ibid 603.

90 ibid 612.

91 Lubell (n 80) 750. The question then becomes what degree of control over the situation is needed in order to invoke the application of international human rights law. The general view is that where ‘[a] government could effect arrest (of individuals or groups) without being overly concerned about interference by other rebels on that operation, then it has sufficient control over the place to make human rights prevail as lex specialis’: Sassòli and Olson (n 71) 614.

92 Sassòli and Olson (n 71) 614.

93 ibid 606.

94 See, eg, Doswald-Beck (n 70), Lubell (n 80), Sassòli and Olson (n 71), Murray and others (n 86) para 511.

95 The general view is that international human rights law only imposes obligations upon states. 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.

96 ICRC Study (n 6) r 48.

97 n 48.

98 n 51.

99 Sandoz, Swinarski and Zimmermann (n 1) 486–87.

100 ICRC Study (n 6) 168. 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’).

101 Vienna Convention on the Law of Treaties (entered into force 28 January 1980) 1155 UNTS 331, art 31(3)(b).

102 Statute of the International Court of Justice (n 41) art 38(1)(b).

103 US Law of War Manual (n 68) para 5.9.3.2.; France, Manuel de Droit des Conflits Armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés (2001) 105; Belgium, Droit de la Guerre, Dossier d'Instruction pour Soldat, à l'attention des officiers instructeurs, JS3, Etat-Major Général, Forces Armées belges, undated, 15; Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l'instructeur en vigueur dans les forces de défense, Présidence de la République, Ministère de la Défense, Etat-major des Armées (2006) 256; Benin, Le Droit de la Guerre, III fascicules, Forces Armées du Bénin, Ministère de la Défense nationale (1995); Chad, Droit international humanitaire, Manuel de l'instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées (2006).

104 Cameroon, ibid.

105 Belgium (n 103).

106 France (n 103).

107 Dominican Republic, La Conducta en Combate según las Leyes de la Guerra, Escuela Superior de las FF.AA. ‘General de Brigada Pablo Duarte’, Secretaría de Estado de las Fuerzas Armadas (1980) 6–7.

108 US Law of War Manual (n 68) para 5.9.3.2. (underscore in the original).

109 ibid para 12.4.1.

110 US Law of Armed Conflict Deskbook (n 60) 167.

111 Canada, Code of Conduct for CF Personnel (Office of the Judge Advocate General 2001) r 5 para 3.

112 Côte d'Ivoire, Droit de la guerre, Manuel d'instruction, Ministère de la Défense, Forces Armées Nationales (2007) 46–47.

113 United Kingdom, Joint Service Manual of the Law of Armed Conflict (2004) paras 10.5–10.5.1.

114 ibid para 10.51.

115 Henderson (n 55) 88 fn 64. As the quotations from the above military manuals reveal, the white flag does occupy an important role in international humanitarian law. Art 32 of the Hague Regulations 1907 (n 48) provides that persons who cross the battlefield in order to conduct negotiations with the opposing force cannot be made the object of attack from the moment they assume this role until the moment it is concluded. Such persons are known as parlementaires. A request to advance across the battlefield to enter into negotiations is made by waving the white flag, which then must either be accepted or rejected by the opposing force. For a discussion of the legal framework relating to parlementaires see Green, Leslie, The Contemporary Law of Armed Conflict (Manchester University Press 2013) 113–16.

116 Patrick E Tyler, ‘War in the Gulf: The Overview; Iraq Orders Troops to Leave Kuwait but US Pursues Battlefield Gains; Heavy American Toll in Scud Attack’, The New York Times, 26 February 1991, http://www.nytimes.com/1991/02/26/world/war-gulf-overview-iraq-orders-troops-leave-kuwait-but-us-pursues-battlefield.html?pagewanted=all.

117 US Department of Defense (n 77) 644.

118 US Law of War Manual (n 68) para 5.4.6.3. (footnotes omitted).

119 ICRC, The Law of Armed Conflict: The Conduct of Operations: Part A, June 2002, 19, https://www.icrc.org/eng/assets/files/other/law3_final.pdf.

120 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.

121 ‘Surrender involves an offer by the surrendering party (a unit or an individual solider) and an ability to accept on the part of his opponent’: US Department of Defense (n 77) 641.

122 ‘The law of war obligates a party to a conflict to accept the surrender of enemy personnel’: ibid.

123 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.

124 ibid.

125 ibid.

126 Professor Sir Adam Roberts, quoted in Leigh (n 123).

127 ibid.

128 US Department of Defense (n 77) 641.

129 ibid 643.

130 Additional Protocol I (n 6) art 57(1). Its customary status during international armed conflict is confirmed by ICRC Study (n 6) r 15.

131 Additional Protocol II (n 49) art 13(1). Its customary status during non-international armed conflict is confirmed by ICRC Study (n 6) r 15.

132 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). 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’.

133 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.

134 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.

135 Sandoz, Swinarski and Zimmermann (n 1) paras 1621–22.

136 ‘The offer to surrender must be clear and unconditional’: US Law of War Manual (n 68) para 5.9.3.2.

137 The US explains that ‘[s]urrender may be made by any means that communicates the intent to give up. No clear rule exists as to what constitutes surrender. However, most agree surrender means ceasing resistance and placing oneself at the captor's discretion’: US Law of Armed Conflict Deskbook (n 60) 138. See also Hague Regulations IV (n 48) art 23(c): ‘It is forbidden [t]o kill or wound an enemy who … has surrendered at discretion’.

138 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 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 2005) 975.

139 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. Such conduct is known as perfidy. It is well established that feigning surrender in order to invite the confidence of an enemy is a perfidious act. 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.

Keywords

The Rule of Surrender in International Humanitarian Law

  • Russell Buchan (a1)

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