Rule 47. Attacks against Persons Hors de CombatRule 47. Attacking persons who are recognized as hors de combat is prohibited. A person hors de combat is:
(a) anyone who is in the power of an adverse party;
(b) anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness; or
(c) anyone who clearly expresses an intention to surrender;
provided he or she abstains from any hostile act and does not attempt to escape.
SummaryState practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
International armed conflictsThis is a long-standing rule of customary international law already recognized in the Lieber Code, the Brussels Declaration and the Oxford Manual. The Hague Regulations provide that 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”. Additional Protocol I prohibits attacks against persons recognized as hors de combat and provides that such attacks constitute grave breaches of the Protocol. Under the Statute of the International Criminal Court, “killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion” is a war crime in international armed conflicts.
The prohibition on attacking persons recognized as hors de combat is set forth in numerous military manuals. Sweden’s IHL Manual identifies the prohibition on attacking persons recognized as hors de combat in Article 41 of Additional Protocol I as a codification of customary international law. Violation of this rule is an offence under the legislation of many States. It is also referred to in military communiqués. It is supported by official statements and reported practice. The prohibition on attacking persons hors de combat has been upheld in case-law following the First and Second World Wars.
Non-international armed conflictsThe rule is based on common Article 3 of the Geneva Conventions, which prohibits “violence to life and person, in particular murder of all kinds” against persons placed hors de combat. This prohibition is repeated in Additional Protocol II, which adds that “it is prohibited to order that there shall be no survivors”. In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.
Military manuals which are applicable in or have been applied in non-international armed conflicts prohibit attacks against persons recognized as hors de combat. Such attacks are also defined as a war crime in the legislation of a number of States. The rule has been applied in national case-law. It is supported by official statements and other practice.
Contrary practice collected by the Special Rapporteurs of the UN Commission on Human Rights and by the ICRC has been condemned as a violation of the rule. The ICRC has called for respect for the prohibition of attacks on persons hors de combat in both international and non-international armed conflicts.
Specific categories of persons hors de combatA person hors de combat is a person who is no longer participating in hostilities, by choice or circumstance. Under customary international law, a person can be placed hors de combat in three situations arising in both international and non-international armed conflicts:
(i) Anyone who is in the power of an adverse party. It is uncontested that a person who is in the power of an adverse party is hors de combat. This rule is set forth in Additional Protocol I and is implicit in common Article 3 of the Geneva Conventions and in Additional Protocol II. It has been confirmed in numerous military manuals. Respect for and protection of persons who are in the power of an adverse party is a cornerstone of international humanitarian law as reflected in several provisions of the Geneva Conventions and Additional Protocols. Practice, therefore, focuses rather on the treatment to be given to such persons (see in particular Chapters 32 and 37).
(ii) Anyone who is defenceless because of unconsciousness, shipwreck, wounds or sickness. This category is based on the Hague Regulations, common Article 3 of the Geneva Conventions and Additional Protocol I, which prohibit attacks on defenceless persons. It is found in numerous military manuals. It is contained in the legislation of many States. It is also supported by case-law, official statements and other practice, such as instructions to armed forces. In addition, respect for and protection of the wounded, sick and shipwrecked is a cornerstone of international humanitarian law applicable in both international and non-international armed conflicts as reflected in several provisions of the Geneva Conventions and their Additional Protocols. Practice, therefore, focuses rather on the treatment to be given to such persons (see Chapter 34).
(iii) Anyone who clearly indicates an intention to surrender. This category is based on the Hague Regulations, common Article 3 of the Geneva Conventions and Additional Protocol I. It is contained in numerous military manuals. It is included in the national legislation of many States. It is also supported by official statements and other practice, such as instructions to armed forces. The general tenet that emerges from this practice is that a clear indication of unconditional surrender renders a person hors de combat. In land warfare, a clear intention to surrender is generally shown by laying down one’s weapons and raising one’s hands. Other examples, such as emerging from one’s position displaying a white flag, are mentioned in many military manuals. There are specific examples of ways of showing an intent to surrender in air and naval warfare.
The ability to accept surrender under the particular circumstances of combat was discussed by the United Kingdom and the United States in the light of the war in the South Atlantic and the Gulf War respectively. The United Kingdom pointed out that it may not be possible to accept surrender from a unit while under fire from another position. Hence, a party which “takes” surrender is not required to go out to receive surrender; instead, the party offering surrender has to come forward and submit to the control of the enemy forces. The United States took the position that an offer of surrender has to be made at a time when it can be received and properly acted upon and that a last-minute surrender to an onrushing force may be difficult to accept. The question remains, however, as to how to surrender when physical distance may make it difficult to indicate an intention to surrender or may subject one to charges of desertion. The United States also took the position that retreating combatants, if they do not communicate an offer of surrender, whether armed or not, are still subject to attack and that there is no obligation to offer an opportunity to surrender before an attack.
Quarter under unusual circumstances of combatThe prohibition on attacking a person recognized as hors de combat applies in all circumstances, even when it is difficult to keep or evacuate prisoners, for example, when a small patrol operating in isolation captures a combatant. Such practical difficulties must be overcome by disarming and releasing the persons concerned, according to Additional Protocol I. This is restated in several military manuals. The US Field Manual similarly states that:
A commander may not put his prisoners to death because their presence retards his movements or diminishes his power of resistance by necessitating a large guard, or by reason of their consuming supplies, or because it appears certain that they will regain their liberty through the impending success of their forces. It is likewise unlawful for a commander to kill prisoners on grounds of self-preservation, even in the case of airborne or commando operations.
Israel’s Manual on the Laws of War and the UK Military Manual contain similar statements. Additional Protocol I and several military manuals require that all feasible precautions be taken to ensure the safety of released prisoners.
In the context of non-international armed conflicts, some armed opposition groups have raised difficulties in providing for detention, but the duty to give quarter has not been challenged per se.
Practice recognizes that the duty to give quarter is to the benefit of every person taking a direct part in hostilities, whether entitled to prisoner-of-war status or not. This means that mercenaries, spies and saboteurs also have the right to receive quarter and cannot be summarily executed when captured (see also Rules 107–108).
Loss of protectionAccording to Additional Protocol I, immunity from attack is conditional on refraining from any hostile act or attempt to escape. This is also set forth in several military manuals. The commission of these acts signifies that the person in question is in fact no longer hors de combat and does not qualify for protection under this rule. The Third Geneva Convention specifies that “the use of weapons against prisoners of war, especially against those who are escaping or attempting to escape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances”. The Convention contains other specific rules applicable to the escape of prisoners of war.
Hostile acts have not been defined, but the Commentary on the Additional Protocols gives examples such as resuming combat if the opportunity arises, attempting to communicate with one’s own party and destroying installations of the enemy or one’s own military equipment.