Enemy personnel may offer to surrender themselves (and the military equipment under their control) to a Belligerent Party.
[Commentary]
- Surrendering enemy personnel are automatically hors de combat, even when they are not incapacitated, and the enemy is not entitled to deny quarter to them (see Rule 126).
- “Enemy personnel” include combatants and non-combatants who are eligible for POW status (for full details, see Art. 4 of GC/III).[667]
- Medical and religious personnel are subject to a special regime (see Art. 33 of GC/III).[668]
- A Belligerent Party may under its own legislation prohibit personnel under its jurisdiction to offer surrender. However, this does not impact on the law of international armed conflict and has no bearing upon the validity of the surrender under international law.
- Enemy personnel who surrender will normally be taken into the custody — and placed under the protection — of the detaining Belligerent Party. However, this is not always feasible. If the military unit, in whose custody the surrendering personnel are, is incapable (because of unusual combat conditions) to escort them to a POW-camp, they must be released without harm (see Art. 41 (3) of AP/I).[669] Thus, the obligation on the part of the Belligerent Party is not necessarily to detain surrendering enemy personnel, but to desist from further attack on persons complying with the conditions set out in Rule 127.
- In a non-international armed conflict, “surrender” with the rights and duties as provided in GC/III is irrelevant. Nevertheless, members of armed forces and of non-State organized armed groups may give themselves up for “capture”.
- Art. 4 of GC/III, see fn. 198.
- Art. 33 of GC/III, see fn. 461.
- Art 41 (3) of AP/I: “When persons entitled to protection as prisoners of war have fallen into the power of an adverse Party under unusual conditions of combat which pre¬vent their evacuation as provided for in Part III, Section 1, of the Third Convention, they shall be released and all feasible precautions shall be taken to ensure their safety.”
It is prohibited to deny quarter to those manifesting the intent to surrender.
[Commentary]
- This Rule is based on Art. 23 (d) of the 1907 Hague Regulations[670] and on Art. 40 of AP/I.[671] See also Para. 6.2.6. of NWP.[672]
- To give quarter to an enemy means to desist from further attack.
- Persons who surrender (or give themselves up for capture, see paragraph 6 of the Commentary on Rule 125) no longer pose a threat to the enemy. It is unlawful to kill or injure such persons regardless of whether they have combatant status or not.
- On the face of it, there may seem to be an inconsistency between Rule 126 and Rule 15 (a), inasmuch as Rule 15 (a) refers explicitly not only to the denial of quarter but also to the threat of following such a policy. However, the Group of Experts felt that Rule 126 deals only with post-surrender situations, and therefore there was no need to reiterate the prohibition of the threat of a “no quarter”-policy.
- If an individual soldier manifests the intent to surrender while his comrades continue to fight, difficult situations may arise. The following considerations must be borne in mind: (i) in battle it may be impossible to distinguish between the individual who has surrendered and his comrades who continue the fight; and (ii) the soldier purporting to surrender may be conspiring with his comrades, acting perfidiously in order to lure the enemy into a trap. Hence, the importance of Rule 127.
- As indicated in paragraph 6 of the Commentary on Rule 125, Rule 126 applies both to surrender in in-ternational armed conflict, and to capture in non-international armed conflict.
- Art. 23 of the 1907 Hague Regulations: “In addition to the prohibitions provided by special Conventions, it is especially forbidden : … (d) to declare that no quarter will be given.”
- Art. 40 of AP/I: “It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.”
- Subpara. 3 of Para 6.2.6 of NWP: “The following acts, if committed intentionally, are examples of war crimes that could be considered grave breaches: … (4) Denial of quarter (i.e., killing or wounding an enemy unable to fight due to sickness or wounds or one who is making a genuine offer of surrender) and offenses against combatants who have laid down their arms and surrendered.”
Surrender is contingent on three cumulative conditions:
(a) The intention to surrender is communicated in a clear manner to the enemy.
[Commentary]
(b) Those offering to surrender must not engage in any further hostile acts.
[Commentary]
(c) No attempt is made to evade capture.
[Commentary]
- This Rule is based on Para. 8.2.3.3 of NWP[673] and on Para. 5.6. of the UK Manual.[674]
- This condition is of a practical, not a legal nature. If the forces of a Belligerent Party are reasonably unaware of the intention to surrender, they cannot be expected to desist from further attacks.
- If a person makes an attempt to communicate an intention to surrender in a manner that is not clear, the condition is not met. However, if circumstances permit, the enemy ought to seek clarification.
- It ought to be noted that retreat is not surrender, even if the retreating troops have thrown away their weapons.
- In land warfare, classical ways of communicating intention to surrender are to throw one’s weapons and to raise one’s arms. The display of a white flag,[675] which once meant only a request to parley, is nowadays in practice also used as a means of communicating an intention to surrender.
- In naval warfare, the traditional signal of surrender is to strike the flag.
- Rule 127 (a) applies mutatis mutandis to capture in non-international armed conflict (see paragraph 6 of the Commentary on Rule 125).
- Para. 8.2.3.3 of NWP (“Surrender”): “Combatants, whether lawful or unlawful, cease to be subject to attack when they have individually laid down their arms and indicate clearly their wish to surrender. The law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms. Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent. The latter 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 an ongoing battle is neither easily communicated nor received. The issue is one of reasonableness. The mere fact that a combatant or enemy force is retreating or fleeing the battlefield, without some other positive indication of intent, does not constitute an attempt to surrender, even if such combatant or force has abandoned his or its arms or equipment.”
- Para. 5.6 of the UK Manual: “A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack. A person is hors de combat if: (a) ‘he is in the power of an adverse Party’; (b) ‘he clearly expresses an intention to surrender’; or (c) ‘he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself’; ‘provided that in any of these cases he abstains from any hostile act and does not attempt to escape’.”
- Art. 32 of the 1907 Hague Regulations, see fn. 626.
- As long as a person engages in hostile acts, he is not regarded as having laid down his arms in the legal sense.
- Hostile acts may include acts like transmitting intelligence to the enemy. Such acts are not compatible with surrender.
- Killing or injuring (or capturing) an adversary while feigning surrender amounts to unlawful perfidy (see Rule 114 (e)).
- Rule 127 (b) applies mutatis mutandis to capture in non-international armed conflict. (see paragraph 6 of the Commentary on Rule 125).
- A person who tries to evade capture has not laid down his arms in the legal sense, and is thereby not hors de combat. He can therefore be attacked (see Rule 15 (b)).
- A combatant on the ground or at sea who surrenders to an aircraft must stay visible to the aircraft and obey any instructions given, until he can be taken into custody by any aircraft, vessel or ground forces called to the scene by the capturing aircraft. He may not be attacked, even if it is not feasible to take him into custody (see paragraph 5 of the Commentary on Rule 125).
- Those who manifest the intention to surrender must do so in good faith. If ground forces of a Belligerent Party repeatedly raise their hands in order to avoid attack from enemy military aircraft — knowing that the aircraft has no possibility to take prisoners — and continue to fight again when the military aircraft has left, they cannot expect similar behaviour on future occasions to be taken seriously as a genuine offer of surrender.
- Rule 127 (c) applies mutatis mutandis to capture in non-international armed conflict. (see paragraph 6 of the Commentary on Rule 125).
Aircrews of a military aircraft wishing to surrender ought to do everything feasible to express clearly their intention to do so. In particular, they ought to communicate their intention on a common radio channel such as a distress frequency.
[Commentary]
- The law of international armed conflict does not precisely define when surrender of a military aircraft takes effect or how it may be accomplished in practical terms.
- Unlike land or naval warfare (see paragraphs 5 and 6 of the Commentary on Rule 127 (a)), the practice of air warfare does not reveal any commonly accepted indication of an aircrew’s wish to surrender.
- Rocking the aircraft’s wings, lowering the landing gear and other signals (such as flashing of navigational lights or jettisoning of weapons) are sometimes cited as indications of an intent to surrender, but they cannot be regarded as conclusive evidence, since there may be other reasons for the activity in question. Moreover, when air and missile combat is conducted beyond visual range, as frequently happens in modern warfare, such gestures are futile. Consequently, only an appropriate radio communication — duly transmitted to the enemy, preferably on an ICAO distress frequency — may be deemed an effective message of surrender in over-the-horizon aerial encounters.
- The ICAO distress frequency must not be disrupted by any Belligerent Party (see paragraph 2 of the Commentary on Rule 115). Continuous watch ought to be kept on this frequency at the appropriate command centres.
- Rule 128 applies mutatis mutandis to capture in non-international armed conflict (see paragraph 6 of the Commentary on Rule 125).
A Belligerent Party may insist on the surrender by an enemy military aircraft being effected in a prescribed mode, reasonable in the circumstances. Failure to follow any such instructions may render the aircraft and the aircrews liable to attack.
[Commentary]
- In the absence of generally prescribed modes of surrender in air warfare, there may be no alternative to such modes being set ad hoc by a Belligerent Party in light of the prevailing circumstances. However, any prescribed mode established in such fashion must be reasonable.
- A “prescribed mode” — established under Rule 129 — could include flying a particular course, at a fixed altitude and at a given airspeed, as well as landing at a pre-arranged location.
- Once a prescribed mode of surrender is established in conformity with Rule 129, any deviation from its terms may expose the aircraft to an attack.
- Rule 129 applies mutatis mutandis to capture in non-international armed conflict (see paragraph 6 of the Commentary on Rule 125).
Aircrews of military aircraft wishing to surrender may, in certain circumstances, have to parachute from the aircraft in order to communicate their intentions. The provisions of this Section of the Manual are without prejudice to the issue of surrender of aircrews having descended by parachute from an aircraft in distress (see Section T of this Manual).
[Commentary]
- Since there is no generally prescribed mode indicating surrender of an aircraft and its crew, and since radio communications may fail, aircrews of military aircraft may have no alternative but to resort to parachuting from their aircraft if they want to surrender.
- Aircrews of military aircraft may descend by parachute from their aircraft because of distress, irrespective of any intention to surrender (see Section T). Whether or not they wish to surrender, they must not be attacked during the descent, and must be given an opportunity to surrender upon reaching enemy-controlled territory (see Rule 132 (b)). Only airborne troops may be attacked during their descent.
- Rule 129 applies mutatis mutandis to capture in non-international armed conflict (see paragraph 6 of the Commentary on Rule 125).
Subject to Rule 87, surrendering combatants, as well as captured civilians accompanying the armed forces (such as civilian members of military aircraft crews) and crews of civilian aircraft of the Belligerent Parties who do not benefit from a more favorable treatment, are entitled to prisoner of war status.
[Commentary]
- This Rule is based on Art. 4 (A) (4)–(5) of GC/III,[676] which deals with persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews. It also includes crews of civilian aircraft of the Belligerent Parties. Such civilians are entitled to POW-status if they are captured.
- Civilians who are entitled to POW-status under GC/III must be differentiated in this respect from ordinary civilians who are covered by GC/IV.
- Generally speaking, aircrews and passengers of State aircraft (other than military aircraft) will be civilians. However, some passengers transported by a State aircraft other than a military aircraft, may be members of the armed forces. In that case, they may be taken as POW upon capture of the aircraft.
- Medical or religious personnel cannot be taken as POW and must be allowed to carry out their mission (see Rule 71 and 87).
- The status of POW does not exist as a legal category in non-international armed conflict. Nevertheless, those who have given themselves up for capture (see paragraph 6 of the Commentary on Rule 125) enjoy certain protections under Common Art. 3 of the Geneva Conventions[677] and under customary international law.
- Art. 4 (A) (4) and (5) of GC/III: “(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.”
- Common Art. 3 of the Geneva Conventions, see fn. 118.
