More on the International Law of Surrender

I have recently taken issue with State Department Harold Koh’s characterization of the law of surrender and questioned Kenneth Anderson’s claim that it is correct.

In a personal exhange, Anderson refers me to a book entitled The Contemporary Law of Targeting, pp. 83-92 – I’m sure it’s an absolutely brilliant read but since it costs almost $150 I can as of now neither confirm nor deny Ken’s claim that it supports his argument.

However, Stephanie Carvin points me to Article 41 of Additional Protocol I which reads as follows:

Art 41. Safeguard of an enemy hors de combat

1. 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.

2. 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.

Contrast this to what Harold Koh wrote:

… The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.

I still see a disconnect here. I think Koh is spot on until he gets to the clause “under circumstances where it is feasible” because he has already communicated the contingent assumption that a genuine surrender occurs and US troops know it occurred, so the “feasible conditions” criteria he is describing seem to imply that even at that point US troops have discretion. Upon my reading of the Geneva Conventions this is false.

Now let me point out that the US is not a signatory to AP1 (though I believe it is considered customary law) so let’s look at the Hague Convention of 1907 (Article 23) in which:

It is especially forbidden
(a) To employ poison or poisoned weapons;
(b) To kill or wound treacherously individuals belonging to the hostile nation or army;
(c) To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion;…

That’s right, failing to accept an unconditional surrender from an unarmed enemy ranks right up there with assassination and the use of chemical weapons. No ifs, ands or buts about it.

I’m not saying this was the case in Abbottabad. But I am saying that Koh either doesn’t understand the law on surrender, or wants to misinform us about it.