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Commentary - Quarter
    [p.473] Article 40 -- Quarter


    General remarks

    1588 Articles 37 ' (Prohibition of perfidy), ' 38 ' (Recognized emblems) ' and 39 ' (Emblems of nationality) ' appeal to the good faith of the combatant which is a fundamental condition for the existence of law. Articles 40 ' (Quarter), ' 41 ' (Safeguard of an enemy hors de combat), ' and 42 ' (Occupants of aircraft) ' appeal to his humanitarian [p.474] sentiment and represent that side of man where his instincts as a human being still prevail over those controlling him as a combatant, even in the midst of battle.

    1589 Since the beginning of history the rule by which the conquered enemy may not be exterminated has become established in the course of time. Initially this rule was accepted with regard to peoples of the same race, the same religion, or with whom there were neighbourly relations (1) in times of peace, but eventually it was also imposed, though not without difficulty (2) in favour of those who were considered strangers. The laws of Manu in ancient India, to take just one example, included a general prohibition of refusing quarter, in other words, the refusal to spare lives. (3) This elementary rule, like all humanitarian achievements, has developed in stages. For a long time the rule included enslaving those prisoners who were considered to be strangers, which at that time was a way of protecting them.

    1590 Once slavery -- and then ransoming -- had been abolished, exceptions were made to the rule, even in modern times, particularly in siege warfare. A number of military leaders, who were perfectly acquainted with the safeguard of prisoners, had no hesitation, even in the seventeenth century, of informing the commander of a heavily besieged fortress that if he intended to put up an obstinate defence, far from recognizing his courage, they would immediately put him to death once the town had been taken. (4) These threats were by no means empty threats. The draft presented by Russia at the Brussels Conference of 1874 reflected this state of affairs when it proposed the prohibition of threats to exterminate a garrison which obstinately defends a fortress. (5) The French Revolution, which maintained that prisoners of war are under the safeguard of the nation and the protection of law, passed decrees in 1792 and 1794, refusing quarter to certain categories of enemy troops, though these were actually never applied and were quickly repealed. (6) It is said that the last deliberate massacres of prisoners until the Second World War took place in 1795 and 1799. (7)

    Scope of the rule

    1591 Thus the spirit of the Red Cross has had an effect on humanity long before the letter of the rule. As regards the Geneva Conventions, which are concerned [p.475] above all with the condition of combatants from the time that they are in the power of the adversary, a provision which is of paramount importance is Article 23(d) of the Hague Regulations of 1907, which prohibits the declaration "that no quarter will be given" (8). Strictly speaking, the text refers to the intention, the threat or pressure with a view to provoking an immediate surrender, or to terrorising the adversary, but behind these words one can also discern the thought that, naturally, one cannot refuse to give quarter (9). It is obvious that if there is no quarter, in other words, no survivors, there will be no wounded to be retrieved and cared for, no shipwrecked persons to be rescued, and no prisoners to respect and treat humanely.

    1592 This problem does not perhaps appear in quite the same light in the Protocol. In fact, Article 41 ' (Safeguard of an enemy hors de combat) ' is equally concerned with persons who are already in the power of the adverse Party, as with those who are defenceless on the battlefield, or on the point of surrender, as will be shown in the discussion of that article. The principle that it is prohibited to refuse quarter is covered by that provision. However, it was the opinion of a large number of delegations at the Diplomatic Conference that the problems arising from modern warfare fully justify the reaffirmation of the principle laid down in Article 23(d) of the Hague Regulations.

    1593 However, the first session of the Conference of Government Experts hoped for a more explicit term than "quarter" and which would be a better translation of the French term "quartier". The final wording was adopted without discussion after a few drafting corrections relating to earlier proposals. (10) At the request of one delegation (11) Committee III separated this provision from the article relating to the safeguard of the enemy ' hors de combat ' (Article 41), where it was included in the ICRC draft, and made it a separate article. This was one way of underlining the fundamental importance of the principle it contains, (12) while an alternative solution would have been putting it right at the beginning of Article 41 ' (Safeguard of an enemy hors de combat). ' (13)

    1594 This article confirms in the first place the Hague rule, i.e., it would not be acceptable that "combatants who went on defending themselves to the limit of [p.476] their strength and finally surrendered and laid down their arms, should be exterminated". (14) It also prohibits the use of a threat to that effect to accelerate surrender. The demand of unconditional capitulation, which one Party to the conflict may make of the adversary, should never be a pretext for a refusal to give quarter, whether the demand is met or not. This even applies in the event that the ' jus ad bellum, ' the right to participate directly in hostilities, is contested. In other words, it is always prohibited to declare that the adversary is outside the law, or to treat him as such.

    1595 Unfortunately this rule has not always been respected in our time, and though it is true that great humanitarian ideas have progressed in stages throughout history, it is equally true that at times they have regressed. (15) However, Article 40 is emphatic, and it is timely: an order of "liquidation" is prohibited, whether it concerns commandos, political or any other kind of commissars, irregular troops or so-called irregular troops, saboteurs, parachutists, mercenaries or persons considered to be mercenaries, or other cases. It is not only the order to put them to death that is prohibited, but also the threat and the execution, with or without orders.

    1596 What attitude should be taken towards troops who do not respect this rule and do not give quarter? Traditionally it was accepted that only refusal to give quarter, and no other violation of the law applicable in armed conflict, could justify a refusal to give quarter by way of reprisal. (16)

    1597 According to the Protocol the only reprisal measures which are not prohibited are precisely those which are taken on the battlefield. Reprisals can therefore only be directed at combatants and do not detract from the duty to retrieve the wounded and give them appropriate care. (17) If an act of reprisal has been conducted by a unit which is unable to fulfil this obligation, for example, by the airforce, the duty to retrieve the wounded passes on to any other troops of the same Party to the conflict which are able to do so. To maintain that these troops are not involved, on the pretext that they are only bound to conform to the laws and customs of war in their "own" operations, (18) would be an inadmissible argument in these circumstances and in any others. As regards the problem of reprisals in general, we refer to the introduction to Section II ' (Repression of breaches of the Conventions and of this protocol) ' of Part V.

    1598 Article 40 was adopted by consensus, with some regarding it as a rule of "great value from the humanitarian point of view", (19) while others saw it as a provision concerned less with the safeguard of combatants who were ' hors de combat, ' which is actually the object of Article 41 ' (Safeguard of an enemy hors de combat) ' than [p.477] with the conduct of military operations, (20) though this does not detract from its humanitarian importance in any way. Independently of the points raised thus far, there is no doubt that in our age of extraordinary technical achievements with a proliferation of the most lethal weapons throughout the world, this article also raises a problem with regard to weapons, both conventional and others. It is not by any means the only article in the Protocol to raise this question, either in Part II, Part III or Part IV, but the problem is particularly relevant in Article 40 . It is one of the articles referred to by a delegation at the time that Article 35 ' (Basic rules) ' (21) was adopted, which "went beyond the strict confines of humanitarian law and in fact regulated the law of war". (22) This statement is unreservedly true in the context of conventional operations. Article 40 does not imply that the Parties to the conflict abandon the use of a particular weapon, but that they forgo using it in such a way that it would amount to a refusal to give quarter. In other words, the rule of proportionality also applies with regard to the combatants, up to a point. The deliberate and pointless extermination of the defending enemy constitutes disproportionate damage as compared with the concrete and direct advantage that the attacker has the right to achieve. (23) It is sufficient to render the adversary ' hors de combat. ' The prohibition of refusing quarter therefore complements the principle expressed in Article 35 ' (Basic rules), ' paragraph 2, which prohibits methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

    1599 As regards nuclear weapons, whether tactical or strategic, these form the object of a controversy which is examined elsewhere. (24) However, it would be wrong to infer from this controversy that the constraints imposed by Article 40 in favour of enemy combatants concerning the use of conventional weapons are only of marginal importance on the argument that, if a nuclear weapon were used, the situation of these combatants would in any event be much worse. The rule is the rule and nuclear weapons raise questions which should be examined in their own right in the context of the recognized rules.

    Conclusion

    1600 It is always prohibited to declare that the adversary is outside the law, and to treat him as such on the battlefield.

    ' J. de P. '


    NOTES

    (1) [(1) p.474] See M.W. Mouton, "History of the Laws and Customs of War up to the Middle Ages", ' RICR -- English Supplement, ' October 1959, p. 184;

    (2) [(2) p.474] According to Plato's ' Republic, ' those who were not Greek, i.e., the barbarians, were considered to be outside the law. Consequently the laws of war did not apply to them (ibid., November 1959, p. 198);

    (3) [(3) p.474] Ibid., October 1959, p. 190; also see F. Berber, op. cit., p. 21;

    (4) [(4) p.474] Vattel does seem to accept that garrisons refusing to surrender will be punished after the attack (' The Law of Nations or Principles of the Law of Nature ', book III, chapter VIII, para. 143, quoted by A. Rosas, ' The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts ', Helsinki, 1976, p. 52, note 52);

    (5) [(5) p.474] A. Mechelynck, op. cit., p. 238;

    (6) [(6) p.474] A. Rosas, op. cit., pp. 62-63;

    (7) [(7) p.474] Ibid., p. 65, note 132;

    (8) [(8) p.475] The term "quarter", which here means that the conquered enemy's life is spared, or that he is treated favourably, is also used to designate the quartering or encampment of a body of troops; thus to give quarter means to provide accommodation, security and by implication, life. This derivation is considered to be the most likely. It was confirmed in plenary meeting that the rule of Article 40 is perfectly in accordance with the term "quarter" used in the title (O.R. VI, pp. 103-104, CDDH/SR.39, paras. 67-68);

    (9) [(9) p.475] See A. Mechelynck, op. cit., p. 245;

    (10) [(10) p.475] The draft put forward in 1972 by the ICRC (Art. 34, para. 2) reads as follows: "It is forbidden to decide to leave no survivors and take no prisoners, to so threaten an enemy and to conduct the fight in accordance with such a decision". An Australian amendment (CE/COM III/C 46) substituted "to order" for "to decide". (' CE 1972, Report ', vol. II, p. 59). The draft presented to the Diplomatic Conference reads: "It is forbidden to order that there shall be no survivors, to threaten an adversary therewith, and to conduct hostilities on such basis." (Art. 38, paragraph 3);

    (11) [(11) p.475] O.R. III, p. 169, CDDH/III/241;

    (12) [(12) p.475] O.R. XIV, p. 277, CDDH/III/SR.29, para. 38; p. 280, para. 57 and p. 282, para. 64;

    (13) [(13) p.475] For the various views expressed, see ibid., pp. 283-285, and O.R. XV, p. 427, CDDH /III/338; for the decision, see ibid., p. 86, CDDH/III/SR. 47, para. 6;

    (14) [(14) p.476] O.R. XIV, p. 277, CDDH/III/SR.29, para. 38;

    (15) [(15) p.476] E.g., see on the Second World War, "The F├╝hrerbefehl of 18th October 1942" in 1 ' Law Reports ', pp. 33-34, and the order "Barbarossa", 12 ' Law Reports, ' pp. 29 ff., as well as "The Commissar Order" and "The Commando Order", ibid., pp. 23 and 34 ("The High Command Trial");

    (16) [(16) p.476) On this particular point this concerns therefore reprisals in kind; see "Trial of Generaloberst Nickolaus von Falkenhorst", in 11 ' Law Reports, ' pp. 29-30;

    (17) [(17) p.476] This rule had already been stated by Lieber: "Troops that give no quarter have no right to kill enemies already disabled on the ground, or prisoners captured by other troops" (op. cit., Art. 61);

    (18) [(18) p.476] Article 1, sub-paragraph 4, of the 1907 Hague Regulations;

    (19) [(19) p.476] O.R. XIV, p. 284, CDDH/III/SR.29, para. 71;

    (20) [(20) p.477] Ibid. p. 279 para. 51;

    (21) [(21) p.477] Supra, ad Art. 35, para. 1, note 38, p. 398;

    (22) [(22) p.477] O.R. VI, p. 101, CDDH/SR.39, para. 55;

    (23) [(23) p.477] This principle of reasonable proportionality between the destruction brought about by an act of hostility and its military result is, according to Max Huber, accepted in international law for the interpretation of the laws of war. This applies especially to the balance between damage caused and the consequent reprisals (M. Huber, "Quelques consid├ęrations...", op. cit., p. 423);

    (24) [(24) p.477] See infra, p. 589, introduction to Section I of Part IV;