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The Rule of Surrender in International Humanitarian Law [1]

['Russell Buchan']

Date: 2018-03-05

Now that the theoretical basis for the rule of surrender has been revealed, it can be utilised as a lens through which state practice relating to surrender can be observed and scrutinised. 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.

Military manuals – which, as I have already explained, represent important sources of state practice that can be used to interpret treaty rules and obligations under customary international humanitarian law – generally fail to address how surrender can be achieved in practical terms during land warfare. Moreover, there are few reported instances of surrender occurring during actual hostilities that have raised difficulties under international humanitarian law, meaning that by and large states have not been formally required to determine the content and scope of the rule of surrender. Such limited state practice, of course, creates difficulties in attempting to define the contours of a rule of treaty and customary law. 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. Accordingly, I propose a three-stage test for determining when an act of surrender is legally effective under international humanitarian law:

These three limbs will be now explored in greater detail.

3.1. A Positive Act Indicating an Intention to No Longer Directly Participate in Hostilities

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. If this is the case, it becomes clear that in order to surrender it is incumbent upon such persons to perform a ‘positive act’,Footnote 53 which indicates ‘in an absolutely clear manner’Footnote 54 that they no longer intend to directly participate in hostilities and therefore no longer represent a threat to the military security of the opposing party.

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.

Broadly speaking, the law of international armed conflict distinguishes between two categories of people: combatants and civilians. Combatants are assumed to be constantly directly participating in hostilities and are incontrovertibly permissible objects of attack.Footnote 55 Combatants include those persons who are incorporated into the regular armed forces of a state by domestic law. Combatants also include those members of irregular armed forces (such as militias and volunteer corps)Footnote 56 – being groups who exhibit ‘a sufficient degree of military organization and belong to a party to the conflict’Footnote 57 – who possess a ‘continuous combat function’.Footnote 58 Continuous combat function requires lasting integration into the irregular group, which encompasses those individuals ‘who have directly participated in hostilities on repeated occasions in support of an organized armed group in circumstances indicating that their conduct reflects a continuous combat role rather than a spontaneous or sporadic or temporary role assumed for the duration of a particular operation’.Footnote 59

Combatants who wish to surrender must act purposively in order to repudiate the assumption that they represent a threat to military security. 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 60

The law of international armed conflict defines civilians in negative terms as those persons who do not qualify as combatants.Footnote 61 As civilians do not directly participate in hostilities they do not pose a threat to the military security of the opposing party. For this reason it is a ‘cardinal principle’ and ‘intransgressible rule’ of international humanitarian law that civilians cannot be directly targeted.Footnote 62 Given their legal immunity from direct targeting, civilians do not have the legal capacity 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 63 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 64 Civilians are liable to direct targeting ‘for such time’Footnote 65 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 66 During the period of direct participation civilians are able to surrender and, as with combatants, in order to do so they must perform a positive act which clearly indicates that they no longer intend to directly participate in hostilities.

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 67 Certain states maintain the view that where civilians repeatedly participate directly in hostilities to the extent that their future participation is likely and predictable, they remain a threat to the military security of the opposing party and can be directly targeted even notwithstanding lulls in participation.Footnote 68 Although this is a controversial interpretation of international humanitarian law,Footnote 69 if we accept arguendo that this view represents lex lata (the law as it stands) civilians who repeatedly directly participate in hostilities possess the capacity to surrender and, in order to become hors de combat and enjoy immunity from direct targeting, they must perform a positive act which signals that they no longer intend to participate in hostilities.

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 70 Instead, states regard insurgents as criminals and terrorists who must be held criminally responsible for their violent and seditious conduct. For the purpose of targeting, and in order to maintain the principle of distinction during non-international armed conflict, the law of such conflict distinguishes between, on the one hand, ‘armed forces’ and ‘armed groups’ (who are often referred to collectively as ‘fighters’Footnote 71 ) and, on the other hand, ‘civilians’.Footnote 72 ‘Fighters’ include those persons who are formally incorporated into a state's armed forces via domestic law and those members of an organised armed group who belong to a state that is party to the armed conflict and who possess a continuous combat function.Footnote 73 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 74 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. Yet, the threat they represent can be repudiated, and thus immunity from direct targeting acquired, where they perform a positive act indicating they no longer intend to participate in hostilities – that is, they surrender.

Unlike international armed conflicts, the law of non-international armed conflict does not expressly define the concept of civilian notwithstanding the fact that treaty law applicable to non-international armed conflict uses the term ‘civilian’ on a number of occasions.Footnote 75 However, the phraseology of these agreements means that civilians necessarily fall into a residual category of anyone who is not a fighter. 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 76 Where they directly participate in hostilities they have the legal capacity to surrender and, in order to do so, they must engage in a positive act that clearly demonstrates their intention that they no longer wish to participate in hostilities.

That the onus is upon those wishing to surrender to indicate unambiguously that they no longer intend to take a direct part in hostilities explains why international humanitarian law does not impose an obligation upon an opposing force to first offer its enemy the opportunity to surrender before making them the object of an attack,Footnote 77 regardless of how hopelessly outgunned and vanquished they may be.Footnote 78

International human rights law may muddy the waters here. 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 79 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 80 If international human rights law were to govern the manner in which a party to an armed conflict targets its enemy this would have a profound impact upon whether and to what extent force can be used permissibly. 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 81 Depending upon the circumstances, in the majority of instances it is likely that in order for force to be deemed necessary, the state must first utilise all reasonable measures at its disposal to communicate to the enemy an offer of surrender and, subsequently, to ascertain whether that offer has been accepted or rejected.Footnote 82

In the Nuclear Weapons advisory opinion the ICJ opined that during times of armed conflict (presumably encompassing both international and non-international armed conflict) the legality of the use of lethal force must be determined according to the applicable lex specialis – meaning that the law governing a specific subject matter takes precedence over law that regulates general matters where there is inconsistency between themFootnote 83 – which, in the context of armed conflict, would be international humanitarian law. In the Court's often quoted dictum:Footnote 84

In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. 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.

During times of international armed conflict state practice is ‘fairly uniform’Footnote 85 and reveals that targeting is to be conducted according to the more permissive standards set by international humanitarian law rather than the more restrictive standards imposed by international human rights law.Footnote 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 87 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 88 As Sassòli and Olson explain, case law in this area is ‘clearly contradictory’Footnote 89 and ‘gives no conclusive answer as to what human rights law requires of government authorities using force against fighters’.Footnote 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 91 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. 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 92

As the law of non-international armed conflict in the context of targeting is currently ‘unclear’,Footnote 93 it is difficult to draw firm conclusions. If the approach described above gains traction within state practice (as it has done within academic literature),Footnote 94 the consequence would be that where a situation is under the control of a stateFootnote 95 that is party to a non-international armed conflict, targeting decisions must be guided by the standards set by international human rights law, which means that states must make all reasonable efforts to communicate to their enemies the offer of surrender before they can be directly targeted.

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. 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’. Although Article 42 relates to international armed conflicts, the rule it contains applies also to non-international armed conflicts on the basis of Common Article 3 of the four Geneva Conventions, which protects persons placed hors de combat by ‘any’ cause. In addition, Rule 48 of the ICRC Study explains that in times of international and non-international armed conflict, customary international law prohibits making persons parachuting from an aircraft in distress the object of attack.Footnote 96

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. 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. Indeed, it is for this reason that Article 42 of Additional Protocol I expressly provides that ‘airborne troops are not protected’ by this rule – airborne troops are militarily active and have yet to engage in a positive act that indicates an intention to place themselves hors de combat. Put differently, there is a pressing military need to target them directly.

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. Article 23(c) of Hague Convention IVFootnote 97 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’. The wording of this provision is repeated verbatim in Article 8(2)(b)(vi) of the ICC Statute,Footnote 98 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’. 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.

While other international humanitarian law treaties impose an obligation upon opposing forces to accept valid offers of surrender, they do not provide any guidance as to the type of conduct (verbal or otherwise) that signifies an intention to surrender. 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’. 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. The ICRC insists that customary international law also imposes an obligation to refrain from targeting those who have surrendered, yet Rule 47 of the ICRC Study provides no further guidance on what conduct constitutes a legally effective surrender, stating merely that a person is immune from attack where he or she ‘expresses an intention to surrender’.

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 99

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. 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.

This chimes with the ICRC commentary to Rule 47 which, after citing ‘many military manuals’, explains that ‘[i]n land warfare, a clear intention to surrender is generally shown by laying down one's weapons and raising one's hands’ or by ‘displaying a white flag’.Footnote 100

Given that the relevant treaties are silent as to the conduct that constitutes an act of surrender, state practice becomes an important indicator of the ways in which ambiguous or unclear treaty provisions must be interpreted.Footnote 101 State practice (coupled with opinio juris) is also key to interpreting obligations imposed by customary international law.Footnote 102 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.

Importantly, a significant number of military manuals produced by states identify the laying down of weapons and the raising of hands as an acceptable means through which to manifest an intention to surrender,Footnote 103 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. The picture is more complex in relation to the white flag.

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. Indeed, there is support for this approach in a number of military manuals. For example, Cameroon's Instructor's Manual explains that ‘the white flag is the symbol of surrender of troops and engages the adversary to respect immediately the ceasefire rules’.Footnote 104 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 105 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 106 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. He may signal to you with a white flag, by emerging from his position with arms raised or yelling to ceasefire’.Footnote 107

However, not all states identify the white flag as being indicative of an intention to surrender. In fact, a number of states expressly reject the contention that the waving of a white flag is constitutive of surrender. The United States, for example, claims that ‘[w]aving a white flag technically is not a sign of surrender, but signals a desire to negotiate’Footnote 108 and that ‘[t]he hoisting of a white flag has no other legal meaning in the law of war’.Footnote 109 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 110

During the Battle for Goose Green, some Argentinean soldiers raised a white flag. A British lieutenant and two soldiers advanced to accept what they thought was a proffered surrender. They were killed by enemy fire in a disputed incident. Apparently, one group of Argentines was attempting to surrender, but not the other group. The Argentine conduct was arguably treachery if those raising the white flag killed the British soldiers, but not if other Argentines fired unaware of the white flag. This incident emphasizes the rule that the white flag indicates merely a desire to negotiate, and its hoister has the burden to come forward.

Other states similarly reject the contention that the white flag indicates an intention to surrender. For example, Canada's Code of Conduct states that ‘[t]he showing of a white flag is not necessarily an expression of an intent to surrender’.Footnote 111 The Teaching Manual for the armed forces of Côte d'Ivoire also explains that ‘[t]he white flag is used to indicate the intention to negotiate and to protect the persons who negotiate. It does not necessarily indicate – as it is often believed – an intention to surrender’.Footnote 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. Initially, the Manual explains that:Footnote 113

From time immemorial, a white flag has been used as a signal of a desire to open communications with the enemy. This is the only meaning that the white flag possesses in the law of armed conflict … The display of a white flag means only that one party is asked whether it will receive a communication from the other.

The Manual then proceeds to explain that ‘[e]verything depends on the circumstances and conditions of the particular case. For instance, in practice, the white flag has come to indicate surrender if displayed by individual soldiers or a small party in the course of an action’.Footnote 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 115

One final question remains. Does the act of retreat amount to conduct that signals an intention to surrender under either treaty or customary international law? Neither treaty law, including the relevant commentaries, nor military manuals indicate that retreat is indicative of surrender. This issue is relevant because during the First Gulf War, American forces overran Iraqi troops near the Kuwait–Iraq border and American forces continued to directly target Iraqi forces even though they were in clear retreat. The US military was criticised for this conduct.Footnote 116 In responding to these criticisms, the US Department of Defence submitted a report to Congress, which maintained that the act of retreat does not amount to a positive act that clearly reveals an intention to surrender:Footnote 117

It is recognized by military professionals that a retreating force remains dangerous. 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.

The US Law of War Manual reiterates this view: ‘Enemy combatants remain liable to attack when retreating. Retreat is not the same as surrender. Retreating forces remain dangerous as the enemy force may recover to counterattack, consolidate a new defensive position, or assist the war effort in other ways’.Footnote 118 This view is also endorsed by the ICRC, which explains that ‘[t]he law of armed conflict does not prohibit attacks on retreating enemy forces. 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 119 As a result, state practice makes it ‘clear that the simple fact that troops are retreating does not demonstrate an intent to surrender’.Footnote 120

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[1] Url: https://www.cambridge.org/core/journals/israel-law-review/article/rule-of-surrender-in-international-humanitarian-law/714B1EAB954811EB2907A046EA069504

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