Introduction

For soldiers entering the field of battle there are only so many possible outcomes. They will generally either be victorious or defeated, with the latter leading to retreat, death, injury or surrender. Despite this, the issue of surrender is rarely discussed within the military. It is unthinkable to consider an eventuality where your forces are defeated, let alone forced to surrender. Despite rhetoric in some militaries about ‘no surrender’ and ‘fighting to the death’ the reality is that history demonstrates that the issue of surrender will confront leaders during a major conflict. During the Second World War Australian Army units surrendered on multiple occasions, mainly in the disastrous Greece Campaign of 1941 and in the early stages of the Pacific War in 1942. With the risk of major conflict in the Indo-Pacific increasing,^[1] it behoves the Australian Army to consider the issue of surrender, along with its ethical and leadership considerations. Surrender is not a simple decision; it is one that can potentially lead to ill treatment and death or alternatively, provide an opportunity to escape and fight on. By considering these issues in peacetime, opposed to the friction of war, Australian Army Leaders will be better prepared to make this decision, or alternatively find a way to avoid surrender.

Rather than focusing on individual combatants, who may have no choice in surrender, this essay will focus exclusively on the surrender of groups of soldiers. When there is a conscious choice to lay down their arms or to continue to fight. This essay will first discuss surrender as a concept and why it hasn’t been an issue during the War on Terror. Then, using historical examples, this essay will propose that the six conditions of the Just War tradition are adapted for a ‘Just Surrender’, providing Australian Army Leaders a framework to tackle this dilemma. For this essay is not advocating surrender, instead that these issues are considered in advance, enabling future leaders to make considered and ethical decisions.

Surrender as a concept

Accepting the surrender of an enemy and the treatment of prisoners of war has varied substantially across the centuries. The progress of civilisation has not necessarily led to better treatment with attempts to provide protections emerging as early as 1625, ^[2] and revenge massacres by ‘civilised’ militaries occurring as recently as the Second World War. ^[3] While warfare has changed substantially, humans in many ways have not. As described by Winston Churchill, in 1952; “A prisoner of war is a man who tries to kill you and fails, and then asks you not to kill him.”^[4] This observation capturing the discipline required to transition from the intensity of combat to civility, along with the reality that many who surrender unfortunately do not survive to become prisoners of war.^[5] While the respective Hague and Geneva conventions form the legal basis of recognising surrender and the subsequent treatment of prisoners, unfortunately nations have often failed to comply with the articles contained within them.^[6] Until recently, this was compounded by some nations putting little effort into the welfare of their own forces who were captured, with attitudes that soldiers who had surrendered were cowards and at worst, traitors.^[7] Despite various protections and international agreements, surrendering to an enemy comes with an inherent risk of death or ill treatment. It is a decision that should not be taken lightly. In recent conflicts however, surrender has not been a realistic option for Australian Army soldiers.

During the War on Terror, the overwhelming military force possessed by Australia and its allies, along with the nature of the adversaries being fought meant that surrender was rarely required or a realistic option. Few would forget the horrific fate of the Jordanian pilot who was captured and subsequently executed by ISIS in 2015.^[8] Generally, if allied soldiers were in a position where surrender was contemplated, it was assumed that the enemy would give no quarter. Those who surrendered would likely be tortured and executed, potentially in a horrific and public fashion.^[9] The United States of America did have some soldiers taken prisoner during this period however, this was a rare event. The most famous case was that of Bowe Berghal, who willingly surrendered himself to the Taliban and was subsequently kept as a hostage for five years before a prisoner exchange freed him.^[10] Others suffered torture for weeks or months before ultimately being executed.^[11] The only example of a group choosing to surrender was elements of the United States 507^th Maintenance Company in the 2003 invasion of Iraq,^[12] a far more conventional stage of the war. Despite being outnumbered, surrounded and with no functioning weapons, the senior survivor, Sergeant James Riley, still questions if surrender was the right decision.^[13] The members of the group subsequently being beaten and ill-treated in captivity.^[14] The decision to surrender is one of the most consequential that a leader can make and even if is it the ‘correct decision’ it will stay with those who make it for decades after. Surrender has not been an issue during the War on Terror as allied military power has meant circumstances requiring surrender have been rare and even then, due to the likely prospect of a horrific execution, it has not been a real option.

A ‘Just War’ Tradition, a potential ‘Just Surrender’ Framework

Unlike some of its close allies, the Australian Army does not have any specific guide or code of conduct relating to the issue of surrender. The United States Military utilises a code of conduct that requires its soldiers to never surrender on their own free will, and if in command, never surrender when their soldiers have the means to resist.^[15] This is then reinforced by direction for specific conduct if captured, how to behave as a prisoner of war and a reminder of their purpose as a member of the American Military. ^[16] Within ADF Doctrine, there is only discussion on the treatment of prisoners, no guidance on how and when to surrender, or advice for leaders on how to handle this eventuality of war.^[17] While the ADF provides Conduct after Capture training, it is focused on the actions after the point of capture and does not address surrender itself.^[18] By providing no guidance there is a risk that when in a major conflict and surrender appears to be the only option, decisions will be ill considered and poorly made. Although this essay won’t propose a specific code of conduct, by adapting the ‘Just War’ tradition there is an opportunity to introduce a ‘Just Surrender’ Framework.

As outlined in the ADF doctrine, the Just War tradition provides a set of criteria that is used by nations to make ethical decisions on going to war.^[19] Essentially it is an ethical decision-making framework, bound in historical tradition, for a decision of the greatest consequence. Given the potential consequences of surrender, the same criteria provides a useful start point to inform the decision to surrender. The Just War Tradition has six criteria; just cause, right intention, legitimate authority, proportionality, probability of success and last resort. ^[20] While this is the natural order for deciding to commence a war, when considering surrender, the natural flow is in fact the reverse.

Last Resort. Given the ADF values of service and courage,^[21] surrender is naturally a last resort. It should only be considered when four criteria are met; the capacity to resist has gone, there is no military necessity to continue fighting, there is no option for escape and any further resistance would be a waste of life. This is the situation that confronted many Australian Army units during the Greek Campaign of 1941, where overwhelming German military power led to units being cut-off and unable to be evacuated.^[22] With dwindling supplies their ability to resist was degraded, there was no immediate benefit in tying down German forces and evacuation was not possible. They had clearly reached the last resort and surrender was a viable option.

Conversely during the subsequent Battle of Crete, due to the rough mountainous terrain of the island, surrender was not the last resort. Despite being cut-off defending the airfield at Retimo, the Commanding Officer of the 2/11^th Battalion gave his soldiers the option to flee to the mountains, rather than comply with the order for a general surrender to the Germans.^[23] This resulting in a disproportionate amount of the soldiers who eventually successfully escaped from Crete to be from the 2/11^th.^[24] By deciding that the last resort had not been reached and taking the opportunity to avoid surrender, these soldiers were able to avoid years of captivity in Europe. Later during the Pacific War, another unit of the Australian Army would take a similar option.

Shortly after the commencement of the Japanese invasion of Timor it became clear that the allied forces would not be able to repel the invaders. Isolated, with minimal naval or air support, it was clear that the fate of the island would be the same as many that were manned by similar Australian Army garrisons in this stage of the Pacific War. The 2/2^nd Independent Company however, decided that the last resort had not been reached. Withdrawing to the mountainous jungle, the 2/2^nd were able to avoid surrender and continue to harass the Japanese.^[25] After manufacturing their own radio they were able to re-establish communications with allied command and arrange their relief by another Independent Company to continue their efforts.^[26] In major conflict, when surrender appears to be an option, it is critical to understand whether it is in fact the last resort. As shown by Australian Army units on both Crete and Timor, other options exist. If these scenarios are considered even earlier, there is clear potential to plan and make preparations, that would aid in avoiding surrender, even when faced with overwhelming military force.

In considering whether the last resort has been reached, a leadership perspective is critical. When surrender wasn’t the last resort and there was an opportunity to escape, two Australian Army Officers took very different paths. Upon hearing of the imminent surrender of Singapore to the Japanese, the Commander of the 8^th Australian Division, General Bennett, handed over his command and took the opportunity to flee with his staff.^[27] The vast majority of his soldiers did not have this opportunity and suffered terribly in captivity. ^[28] In contrast, during the evacuation of Crete, the Commanding Officer of the 2/7^th Battalion returned to shore upon hearing there was not enough room for all his soldiers on the transport.^[29] Surrendering to the German forces with the remainder of his unit that could not escape. While there is no definitive link, during their time as prisoners of war the 2/7^th Battalion had many soldiers successfully escape captivity.^[30] One can only imagine how their morale would have been affected if their Commanding Officer had chosen to flee without them. Similar leadership issues present when contemplating the fact that escape could be an option for some soldiers, but the wounded would not be able to cope with the rigours of the mountains of Crete or jungles of Timor. Surrender should only be used as a last resort, but not at the expense of good leadership and duty.

Probability of Success. When surrendering a great deal of trust is placed with the opposing force. Trust they will not take immediate revenge for the battle that has just been fought and trust they will comply with the Hague and Geneva Conventions.^[31] When considering surrender, the probability of a ‘successful surrender’ must be considered. As outlined earlier, during the War on Terror there was a low likelihood of surviving surrendering to an enemy force however, in a future major conflict between nations, the probability of a ‘successful surrender’ increases. Although Nazi Germany was responsible for some of the worse crimes of the Second World War, the surrender of Western forces was frequently accepted, and the subsequent treatment was generally in line with the conventions. If you were an Australian Army leader having to choose whether to surrender to the Germans, you could reasonably expect it would be a ‘successful surrender’. In the Pacific Theatre, surrender to the Japanese was a different story. During large scale surrenders, such as in Singapore, the surrender itself generally was accepted however, subsequent treatment included torture, malnutrition, forced labour and executions.^[32] Those surrendering in smaller groups often did not survive the process, being executed by Japanese forces shortly after. While some of those surrendering to the Japanese had few choices, hindsight suggested that the allies should have noted Japanese conduct in China and understood their track record of extremely poor treatment of prisoners of war.

It is widely accepted that military leaders understand the equipment, and tactics of their adversaries. It also behoves leaders to understand whether adversaries will accept surrender, how they will treat prisoners and whether they comply with the conventions. This information will be key when weighing the benefits of undertaking a risky escape or putting the fate of your soldiers in the hands of your enemy. It is not only the probability of a ‘successful surrender’ that should be weighed up, but what is the probability of success of an escape at a later point. Are there opportunities to escape from a prisoner of war camp, as many Australians did in the European Theatre of the Second World War. While it may seem difficult to possess this knowledge now, in a major conflict this information may become clear as the conflict progresses and must be part of the decision making of a leader when considering surrender.

Proportionality. In the context of Just War, proportionality relates to weighing up the cost of going to war opposed to the benefits. Not only the costs to your own country, but the costs to others, when determining if going to war is proportional. In the context of surrender, proportionality is linked to the previous criteria of probability of success, the benefits of surrender should be weighed against the costs. While a ‘successful surrender’ may prevent immediate loss of life, there is a psychological and morale impact associated with the potential indefinite captivity as a prisoner of war. Issues of shame, failure and the stigma associated with surrender need to be considered. While these factors may not influence the ultimate decision whether to surrender or not, they need to be understood and mitigated against. Ensuring that surrender is in fact a last resort aids in this mitigation by making it clear that soldiers have done their duty.

When considering costs, the costs to others is another factor. While escape from a situation where surrender seems likely may seem like a clear option, this course of action may require soldiers to hide amongst the civilian population, as many Australian Soldiers did on Crete during the Second World War.^[33] If captured, or even if evidence of their support is discovered this may lead to reprisals against the civilian populace. While this is clearly the fault of the perpetrators of any war crimes against the civilian populace, the second order effects like this need to be considered and assessed if proportional to the escape attempt.

Legitimate Authority. The Just War Tradition requires a legal authority to go to war. In the Australian context, this is the Australian Government through the National Security Committee.^[34] In regard to surrender, it is unclear who has the legal authority, or indeed command authority to order a surrender. During the Second World War it appears this was an ad-hoc arrangement, with it seeming to be situation dependent. Naturally it can be expected that a local commander will have the better understanding of a situation however, there is a risk that their decision making may be compromised by combat conditions. Conversely a higher headquarters may not have an intimate understanding of the situation on the ground but will have a better appreciation of the wider strategic picture, along with the military necessity to continue to resist the enemy. In a major conflict, the authority to surrender needs to be clarified and understood to ensure correct decisions are made.

The surrender of the city of Mariupol, during the initial stages of the recent Russian invasion of Ukraine provides a useful example of how a higher headquarters can provide the legitimate authority for a surrender. The defenders of Mariupol continued to resist Russian efforts, tying down large numbers of troops and aiding the overall military situation despite terrible siege conditions.^[35] When the military necessity was removed and all efforts to extract personnel had been exhausted, it was only then that the Ukrainian Higher Command authorised their surrender.^[36] This process also allowed negotiations with the Russians for better treatment of the surrendering forces. While many were mistreated, ultimately many have returned to Ukraine through prisoner exchanges.^[37] Finally, by removing the decision of surrender from local commanders, it was clear that they had done their duty, mitigating any stigma or perception of failure for the defenders.

Right Intention. The criteria of right intention effectively provides a final check that all the previous points have been considered and inline with Duty Ethics, simply asks whether the act of surrender the right thing to do. By ensuring it is in fact a last resort, there is probability of a ‘successful surrender’, any consequences of surrender are proportional to the act and there is legitimate authority, it could be considered that a surrender is ‘just’ and there is right intention. In the same way that Just War ensures the right intention that the future peace is better than the current situation, the right intention to surrender concerns that a future surrender is better than a useless loss of human life.

Just Cause. While the issue of Just Cause is not directly related to the decision-making process, it is a critical final stage to a ‘Just Surrender’. Like the final element of the United States Military’s Code of Conduct,^[38] if soldiers are forced to surrender it is critical to understand that their cause is just. Surrendering and becoming a prisoner of war for an indefinite period is something that requires great discipline and belief. A leader needs to reinforce the just nature of their cause prior to entering this terrible situation, thus providing the morale and focus that may be needed to survive this period of captivity and focus on returning to their own side.

Recommendation

The first ADF Leadership Principle is to seek and accept responsibility.^[39] While no leader enters a field of battle planning to be defeated or surrender, it is naïve to believe this situation may not face an Australian Army leader in a future major conflict. Leaders need to accept the responsibility that comes with a decision of this consequence and be best prepared for it. By simply including the ‘Just Surrender’ framework within ADF Ethics Doctrine this may be enough to equip future leaders to ensure if they are in this situation, they are prepared for it.

Conclusion

Surrender is one of a limited number of outcomes when entering the field of battle yet receives little to no attention in professional military discourse. There is almost an assumption that soldiers and officers will naturally know what to when faced with this situation. While surrender may be a simple decision for those alone, or hors de combat, leaders need to consider a range of factors beyond their own personal survival. The issue of a surrender is not a simple one and this essay has advocated for it. Instead to demonstrate that through an ethical decision-making framework, based on the Just War tradition, what is required for a ‘Just Surrender’. Not so surrender is rushed to, but instead to ensure everything is considered when facing an overwhelming enemy force and surrender remains a last resort.

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