Buchan, R.J. (2018) The Rule of Surrender in International Humanitarian Law. Israel Law Review, 51 (1). pp. 3-27. ISSN 0021-2237
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?
Metadata
Item Type: | Article |
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Authors/Creators: |
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Copyright, Publisher and Additional Information: | © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2018. This is an author produced version of a paper subsequently published in Israel Law Review. Article available under the terms of the CC-BY-NC-ND license (https://creativecommons.org/licenses/by-nc-nd/4.0/). |
Keywords: | Surrender; international humanitarian law; hors de combat; military necessity; humanity |
Dates: |
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Institution: | The University of Sheffield |
Academic Units: | The University of Sheffield > Faculty of Social Sciences (Sheffield) > School of Law (Sheffield) |
Depositing User: | Symplectic Sheffield |
Date Deposited: | 01 Sep 2017 14:27 |
Last Modified: | 14 May 2020 13:05 |
Published Version: | https://doi.org/10.1017/S0021223717000279 |
Status: | Published |
Publisher: | Cambridge University Press |
Refereed: | Yes |
Identification Number: | 10.1017/S0021223717000279 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:120305 |