Duhaime's Law Dictionary


Surrender Definition:

A declaration of an overpowered belligerent that it is ceasing hostilities.

Related Terms: Capitulation

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.

1945 German surrender, Jodl"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)

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