To many jurists of international law, surrender is synonymous with capitulation. On that basis, the importance of a surrender is, usually but not always, that the overpowering forces do not pillage and plunder or destroy the land and property of the surrendering state.
This rule is of ancient origin as can be demonstrated by the Old Testament of the Christian Bible which, at 20 Deuteronomy 10-16, rather graphically suggests differing treatment for those who have surrender and to those who have not.
In War and Peace, Grotius, too, wrote of the right of pillage as being the right of a victor in warfare except where there had been a surrender or a capitulation. In that event, the ruthlessness was to be tempered. In book 3 of De Jure Belli et Pacis, (War & Peace), chapter 20, he noted that when there has been a surrender, no inhabitant should be killed and no property taken but by way of punishment for a specific crime.
In his 1960 article entitled Legal Character of the Capitulation of Norwegian Armed Forces on June 10, 1940, Vladimir Dedijer wrote:
"In war the military forces of one or the other belligerent carry
on operations in order to overpower each other. Both sides utilize
the maximum of fighting forces to subdue the opponent, but it
sometimes occurs that both of them arrive at the conclusion that their
forces are equal and that each of them is sufficiently strong to defend
itself, even though not strong enough to win. In such cases
peaceful solutions of controversial disputes are sought. Such situations
usually lead to military conventions (cease-fire or armistice).
"The fortunes of war, however, do not lead always to stalemate between
the armed forces of belligerents. The outcome of the struggle
can be the result of the physical superiority of the victor. In such a
case, the possibility arises of the surrender or the capitulation of the
loser, or of an armistice.
"In the course of the fighting the armed forces of a belligerent,
either in its entirety or in its parts, may arrive at the conclusion that
further resistance would be useless and in order to end pointless
shedding of blood find itself compelled to admit to the opponent the
effect which the latter wants to achieve militarily through fighting.
This can be done in two ways; by means of a simple surrender or by
an agreement on capitulation.
"The side that has decided to effect the simple surrender does it by
the simple one-sided declaration of its will, e. g. by putting out the
white flag, etc.
"The surrender is a one-sided juridical act in which the will of the
person who surrenders is clearly declared. By this one-sided declaration
of the will, juridical consequences immediately follow. The
side that is overpowered is eliminated from further fighting by its
action.
"Accordingly, simple surrender is not a contract. It does not contain
the consent of both sides. It is an unilateral act, for it is sufficient
that one side perform the act of surrender; out of this develop
the expected legal consequences. The surrender is a real legal act, and
its substance is actual cessation of fighting."
REFERENCES:
- Dedijer, Vladimir, Legal Character of the Capitulation of Norwegian Armed Forces on June 10, 1940, 30 Nordisk Tidsskrift Int'l Ret 39 (1960)
- Kingsbury, Howard Thayer, Capture After Capitulation: A Juristic Anachronism, 6 Am. J. Int'l L. 650 (1912)