Rule 127
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).
Categories: S: General Rules
