Editing Unconditional surrender (section)

==Surrender at discretion==<!-- The redirect [[surrender at discretion]] redirects to this section header. If it is changed, please change the redirect.-->
In [[siege warfare]], the demand for the garrison to surrender unconditionally to the besiegers is traditionally phrased as "surrender at discretion." If there are negotiations with mutually agreed conditions, the garrison is said to have "surrendered on terms."<ref>{{citation |last=Bradbury |first=Jim |year=1992 |title=The Medieval Siege |publisher=Boydell & Brewer |isbn=978-0-85115-357-5 |page=[https://books.google.com/books?id=fKFRvUiLEQYC&pg=PA325 325]}}</ref><ref>{{citation |last1=Afflerbach |first1=Holger |last2=Strachan |first2=Hew |date=2012 |title=How Fighting Ends: A History of Surrender |publisher=Oxford University Press |isbn=978-0-19-969362-7|page=[https://books.google.com/books?id=gh6VIodYxNMC&pg=PA107 107]}}</ref> One example was at the [[Siege of Stirling Castle (1746)|Siege of Stirling]], during the 1745 [[Jacobite rising of 1745|Jacobite Rebellion]]:
{{quotation|[[Bonnie Prince Charlie|Charles]], thereupon, sent a verbal message to the magistrates, requiring them instantly to surrender the town; but, at their solicitation, they obtained till ten o'clock next day to make up their minds. The message was taken into consideration at a public meeting of the inhabitants, and anxiously debated. The majority having come to the resolution that it was impossible to defend the town with the handful of men within, two deputies were sent to [[Bannockburn]], the headquarters of the Highland army, who offered to surrender to terms; stating that, rather than surrender at discretion, as required, they would defend the town to the last extremity. After a negotiation, which occupied the greater part of Tuesday, the following terms of capitulation were agreed upon:...<ref>[http://www.electricscotland.com/history/charles/49.htm Prince Charles at Glasgow and surrender of Stirling], [http://www.electricscotland.com/ electricscotland.com]</ref>}}

Surrender at discretion was also used at the [[Battle of the Alamo]], when [[Antonio López de Santa Anna]] asked [[Jim Bowie]] and [[William B. Travis]] for unconditional surrender. Even though Bowie wished to surrender unconditionally, Travis refused, fired a cannon at Santa Anna's army, and wrote in his final dispatches:
{{quotation|The enemy has demanded a surrender at discretion otherwise the garrison are to be put to the sword, if the fort is taken &ndash; I have answered their demand with a cannon shot, and our flag still waves proudly from the walls &ndash; I shall never surrender or retreat.<ref>{{citation |first=Walter |last=Lord |year=1978 |title=A Time to Stand: The Epic of the Alamo |publisher=U of Nebraska Press |isbn=978-0-8032-7902-5 |page=[https://books.google.com/books?id=T_CY1o6aihIC&pg=PA14 14]}}</ref>}}

The phrase surrender at discretion is still used in treaties. For example, the [[Rome Statute]], in force since July 1, 2002, specifies under "Article 8 war crimes, Paragraph 2.b:"
{{quotation|Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
<blockquote>
...

(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;<ref>[[s:Rome Statute of the International Criminal Court#Article 8 – War crimes]]</ref></blockquote>}}

The wording in the Rome Statute is taken almost word for word from Article 23 of the 1907 [[Hague Conventions (1907)|IV Hague Convention]] ''The Laws and Customs of War on Land'': "...it is especially forbidden – ... To kill or wound an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion",<ref>[[Hague Conventions (1907)|IV Hague Convention]] ''The Laws and Customs of War on Land'' October 18, 1907. [http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm#art23 Article 23] {{Webarchive|url=https://web.archive.org/web/20150525082008/http://www.yale.edu/lawweb/avalon/lawofwar/hague04.htm#art23 |date=2015-05-25 }}</ref> and it is part of the customary [[laws of war]].<ref>The [[Nuremberg Trials|Nuremberg War Trial]] judgment on ''The Law Relating to War Crimes and Crimes Against Humanity'' held, "The rules of land warfare expressed in the [Hague Convention of 1907] undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt 'to revise the general laws and customs of war,' which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war....", ([https://avalon.law.yale.edu/imt/judlawre.asp Judgement: The Law Relating to War Crimes and Crimes Against Humanity] contained in the [[Avalon Project]] archive at [[Yale Law School]]).</ref>