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Commentary - Safeguard of an enemy hors de combat
    [p.479] Article 41 -- Safeguard of an enemy hors de combat


    [p.480] General remarks

    1601 The reason that the Red Cross has been able for more than a century to pursue its course through all obstacles, is that it is solely concerned with the suffering of man, alone and disarmed. This is its secret strength. Similarly, one might argue that the whole secret of the law of war lies in the respect for a disarmed man. It would be useless to deny that in the heat of action and under the pressure of events, this rule is not always easy to follow. There are many examples in history in which the conqueror was unable to control his force or his victory. However, mankind should hold onto the light revealed by examples in which the opposite was the case, and these examples too are as old as time. Unable to eliminate the scourge of war, one endeavours to master it and mitigate its effects. The safeguard of the enemy ' hors de combat ' on the battlefield is the logical and natural complement to the preceding provision which prohibits the refusal to give quarter. It is a rule of application which follows from this provision and, like it, is derived from the principles laid down in Article 35 ' (Basic rules). ' In practice it is one of the most important rules of the Protocol. It is the object of Article 23 (c) of the Hague Regulations of 1907, which forbids the killing or wounding of an enemy who, having laid down his arms, or having no longer means of defence, has surrendered at discretion. (1) This rule is implicit in the Third Convention, [p.481] which provides in particular that persons protected by this Convention will be treated humanely when they "have fallen into the power of the enemy" (Article 4 ). From the beginning of the preparatory deliberations, some considered that the connection between these two provisions of the Hague Regulations and the Geneva Convention was not sufficiently close, and that there was a need to define the conditions of surrender. (2) In the draft presented by the ICRC to the second session of the Conference of Government Experts, the ICRC made an attempt to meet this need by providing for two articles, (3) one devoted to the safeguard of the enemy ' hors de combat ' -- and this provision in particular took up the above-mentioned article of the Hague Regulations -- the other to the conditions of capture and surrender. Following the observations made by the experts, (4) these texts were rewritten and condensed into a single article in the draft presented by the ICRC to the Diplomatic Conference. (5)

    1602 Despite these preparatory efforts, a number of difficulties arose with regard to the wording of the article. (6) The essential problem concerned how to create a concrete link between the moment when an enemy soldier is no longer a combatant because he is ' hors de combat, ' and the moment when he becomes a prisoner of war because he has "fallen into the power" of his adversary. This precise moment is not always easy to determine exactly. According to the text of 1929 (Article 1 ), the Convention only applied to persons "captured" by the enemy, which might have led to the belief that they first should have been taken into custody in order to be protected. The expression adopted in 1949, "fallen into the power", seems to have a wider scope, but it remains subject to interpretation as regards the precise moment that this event takes place. The central question was to avoid any gap in this protection, whatever interpretation was followed. This question was finally resolved by an overlapping clause: Article 41 prohibits the attack on an enemy ' hors de combat ' from the moment that he is rendered ' hors de combat ' and with no time-limit, i.e., the provision even protects the prisoner of war whose security is dealt with in the Third Convention. In this way the enemy ' hors de combat ' is protected at whatever moment he is considered to have "fallen into the power" of his adversary.

    [p.482] 1603 Article 41 thus purposefully overlaps the Third Geneva Convention. It is a perfect illustration of the interrelation between Hague law and Geneva law. Within the area allocated to it, it endeavours to forge an interlocking and comprehensive system.

    1604 Paragraph 1 provides the basic rule, while paragraph 2 defines the conditions for being ' hors de combat. ' Paragraph 3 is concerned with persons released on the battlefield.

    Paragraph 1 -- The principle of safeguard

    1605 It is a fundamental principle of the law of war that those who do not participate in the hostilities shall not be attacked. In this respect harmless civilians and soldiers ' hors de combat ' are a priori on the same footing. Civilians should not be made the object of attack, as stated in Article 51 ' (Protection of the civilian population), ' paragraph 2; no person ' hors de combat ' should be made the object of an attack, as stated in this paragraph (the English version uses virtually the same wording in both cases: "not be [made] the object of attack"). At first sight the prohibition seems to be stricter in Article 23(c) of the Hague Regulations, which refers to killing or wounding an enemy, almost the same expression as adopted in Article 37 ' (Prohibition of perfidy). ' The report explains this by indicating that:

    "this change was designed to make clear that what was forbidden was the deliberate attack against persons ' hors de combat, ' not merely killing or injuring them as the incidental consequence of attacks not aimed at them ' per se '". (7) '

    This argument is all the more convincing because even civilians are not totally sheltered from military operations in modern warfare, even in the best conditions. Article 57 ' (Precautions in attack), ' paragraph 2, recognizes this fact explicitly in admitting to the possible incidental loss of civilian life, and only prohibits that which would be excessive in relation to the concrete and direct military advantage anticipated. Accidents of this nature are also to be expected on the battlefield itself, and the combatants are not necessarily responsible for them. However, it is specifically prohibited to deliberately make persons ' hors de combat ' a target.

    1606 In the meaning of the Protocol, the expression "attacks" refers to acts of violence against the adversary, whether these are in offence or defence (Article 49 -- ' Definition of attacks and scope of application ' -- paragraph 1). In fact, it refers to the use of arms with the intent of deliberately killing or wounding the enemy. Perhaps it is because a person ' hors de combat ' can no longer be considered as an enemy that the Conference has also abandoned here the terminology of Article 23 (c) of the Hague Regulations in favour of the word "person", suggested during the second session of the Conference of Government Experts. (8) The terminology used in Article 41 , as in Article 42 ' (Occupants of aircraft), ' which deals with [p.483] persons parachuting from an aircraft in distress, is thus the same as in Part II, which refers to "persons in the power of the adverse Party" (Article 11 -- ' Protection of persons ') as well as to wounded and sick "persons" (Article 8 -- ' Terminology, ' sub-paragraph (a)), and it is understood that this refers to both civilians and the military. Whatever the reason for this modification, there is no possible ambiguity in Article 41 , paragraph 1. The rule protects both regular combatants and those combatants who are considered to be irregular, both those whose status seems unclear and ordinary civilians. There are no exceptions and respect for the rule is also imposed on the civilian population (9), who should, like the combatants, respect persons ' hors de combat. '

    1607 Finally, this protection also extends, if necessary, beyond the period of combat, and even after the general close of military operations (10)

    1608 The red cross emblem was created to guarantee the safeguard of persons ' hors de combat ' and installations and units sheltering or transporting them, and of those who are retrieving them and caring for them. (11) It is not enough to decree that persons ' hors de combat ' shall not be made the object of attack. It is also necessary for the adversary to know who this applies to. In the confusion of the battlefield it is not always easy to determine these matters. When the red cross or the red crescent emblem is used, this problem of identification should not present itself. However, the emblem does not necessarily appear in the front line, except perhaps at the moment of rescue operations, and it is actually in the front line, i.e., in the firing line, that combatants fall or reveal their intention of surrendering. (12) Accidents cannot always be avoided. It was to make clear

    "that the prohibition extended only to attacks directed against persons who were, in fact, recognized to be ' hors de combat ' and those who, under the circumstances, should have been recognized by a reasonable man as ' hors de combat '", (13)

    that the paragraph was worded as it is. (14) The expression "in the circumstances" should not give rise to difficulties: it refers to the circumstances of the case.

    [p.484] 1609 Article 85 ' (Repression of breaches of this protocol), ' paragraph 3 (e), defines as a grave breach the fact of "making a person the object of attack in the knowledge that he is ' hors de combat '" when this attack causes "death or serious injury to body or health", and when it is intentional. There is no leeway for the argument of military necessity to justify a derogation. (15)

    Paragraph 2 -- Conditions of rendering a person ' hors de combat '

    1610 In accordance with this paragraph, a person is considered to be rendered ' hors de combat ' either if he is "in the power" of an adverse Party, or if he wishes to surrender, or if he is incapacitated. This status continues as long as the person does not commit any act of hostility and does not try to escape.

    1. ' Sub-paragraph (a) -- Being in the power of an adverse Party '

    1611 Article 4 of the Third Convention and Article 44 of the Protocol ' (Combatants and prisoners of war) ' state that prisoners of war are those members of the armed forces who have "fallen into the power" of the enemy. At first sight it might seem that all persons referred to under either Article 4 of the Third Convention or the categories listed in Article 43 ' (Armed forces) ' of the Protocol who are in the power of the adversary, are therefore protected and that the inclusion of the present sub-paragraph (a) in Article 41 , paragraph 2, is redundant. However, this is not the case.

    1612 Although the distinction may seem subtle, there could be a significant difference between "being" in the power and having "fallen" into the power. Some consider that having fallen into the power means having fallen into enemy hands, i.e., having been apprehended. This is virtually never the case when the attack is conducted by the airforce, which can certainly have enemy troops in its power without being able, or wishing, to take them into custody or accept a surrender (for example, in the case of an attack by helicopters). In other cases land forces might have the adversary at their mercy by means of overwhelmingly superior firing power to the point where they can force the adversary to cease combat. A formal surrender is not always realistically possible, as the rules of some armies purely and simply prohibit any form of surrender, even when all means of defence have been exhausted. A defenceless adversary is ' hors de combat ' whether or not he has laid down arms. Some delegations considered that this situation was already covered by the Third Geneva Convention. If so, those concerned are protected both as prisoners of war and by the present provision. In this sense there is an overlap. On the other hand, others considered that the Third Convention only applies from the moment of the actual capture of the [p.485] combatant, and that therefore the present provision constitutes the only safeguard in the interim. (16)

    1613 From the moment that combatants have fallen "into the hands" of the adversary, the applicability of the Third Convention can no longer be contested. They are prisoners of war and should never be maltreated, but should always be treated humanely. If they make an attempt to escape or commit any hostile act, the use of arms against them is once more permitted within the conditions prescribed in the Third Convention. (17) The same applies a fortiori for adversaries who benefit only from the safeguard of Article 41 without being recognized as prisoners of war. In fact, the proviso at the end of the present paragraph specifically provides it.

    1614 Not all members of the armed forces are combatants. Medical and religious personnel (Article 43 -- ' Armed forces, ' paragraph 2) and the military personnel assigned to civil defence (Article 67 -- ' Members of the armed forces and military units assigned to civil defence organizations, ' paragraph 1(e)), do not have the right to participate directly in hostilities. Thus, when they fall into the power of the adverse Party, i.e., when the latter is able to impose its will upon them, it is without combat, and without being rendered ' hors de combat. ' They therefore automatically fall under the present safeguard, independently of the protection to which they are entitled according to other provisions of the Conventions and the Protocol. (18) The same applies to any unarmed soldier, whether he is surprised in his sleep by the adversary, on leave or in any other similar situation. Obviously the safeguard only applies as long as the person concerned abstains from any hostile act and does not attempt to escape. As regards those persons who accompany the armed forces without actually being members thereof (Third Convention, Article 4A (4)), they are not permitted to participate directly in hostilities. Therefore they too, automatically, fall under this safeguard.

    1615 The situation is not quite as clear in air warfare, as an aircraft is not considered to be in distress for the sole reason that its means of combat have been exhausted. (19) On the other hand, from the moment that the occupants parachute from the aircraft to save their lives, Article 42 ' (Occupants of aircraft) ' applies.

    1616 A vexed question is whether, and in what conditions, fire may be opened against a civilian aircraft during times of armed conflict, irrespective of whether the aircraft belongs to a neutral country or to the adverse Power. In this respect we refer first of all in this regard to the Chicago Convention of 7 December 1944 [p.486] which prohibits shooting down civilian aircraft in all circumstances. (20) However, in times of armed conflict, the problem is that aircraft which appear to be civilian may be equipped for spy missions and may even be heavily armed, thus presenting a formidable danger. (21) Legal opinion asserts, therefore, that such an aircraft may be attacked, but only;

    a) if it refuses to obey orders or signals given to it, or
    b) if it enters a zone with regard to which notification has been given that it is a zone of military activity in which any aircraft enter at their own risk and peril, and where fire may be opened without warning. (22)

    Moreover, all reasonable efforts should always be made to safeguard the interests of the passengers. It is only as a last resort that recourse should be taken to attack. (23)

    1617 The shipwrecked, wounded and sick at sea belonging to the categories listed in Article 13 of the Second Geneva Convention, are covered by this Convention, as well as by the Convention Relative to the Treatment of Prisoners of War. However, the wording of the text of Article 41 , paragraph 2, is sufficiently broad to cover any person rendered "hors de combat" at sea, whether or not they belong to the categories referred to in the Second Convention, i.e., also the merchant navy when it is not engaged in hostilities. Obviously the same applies for armed ships of the merchant navy from the moment that they renounce the use of their arms. This safeguard concerns only persons, but it does concern all persons in the power of an adverse Party. The wording does not seem to leave any room for doubt in this respect. Otherwise, as indicated before in Article 39 ' (Emblems of nationality), ' the Protocol does not aim to regulate warfare at sea, which remains subject to the customary rules. (24)

    2. ' Sub-paragraph (b) -- The clearly expressed intention to surrender '

    1618 In land warfare, surrender is not bound by strict formalities. In general, a soldier who wishes to indicate that he is no longer capable of engaging in combat, or that he intends to cease combat, lays down his arms and raises his hands. [p.487] Another way is to cease fire, wave a white flag and emerge from a shelter with hands raised, whether the soldiers concerned are the crew of a tank, the garrison of a fort, or camouflaged combatants in the field. If he is surprised, a combatant can raise his arms to indicate that he is surrendering, even though he may still be carrying weapons.

    1619 In these various situations, surrender is unconditional, which means that the only right which those who are surrendering can claim is to be treated as prisoners of war. If the intention to surrender is indicated in an absolutely clear manner, the adversary must cease fire immediately; it is prohibited to refuse unconditional surrender. (25) In the air, it is generally accepted that a crew wishing to indicate their intention to cease combat, should do so by waggling the wings while opening the cockpit (if this is possible). (26) At sea, fire should cease and the flag should be lowered. (27) These measures can be supplemented by radio signals transmitted on international frequencies for callsigns. No argument of military necessity may be invoked to refuse an unconditional surrender.

    3. ' Sub-paragraph (c) -- Having been rendered unconscious, or otherwise being incapacitated by wounds or sickness, and therefore being incapable of defending oneself '

    1620 The wounded and sick in the sense of Article 8 ' (Terminology), ' sub-paragraph (a), of the Protocol, are those persons who need medical care as a result of a trauma, disease or other physical or mental disorder or disability, and who refrain from any act of hostility. Shipwrecked persons in the sense of the same article (sub-paragraph (b)) are those persons who find themselves in peril at sea or in other waters, as a result of misfortune affecting them or the vessel or aircraft carrying them, and who refrain from any act of hostility. Article 10 ' (Protection and care) ' adds that all the wounded, sick and shipwrecked, to whatever party they belong, shall be respected and protected. This means in particular that it is prohibited for the adversary to attack or harm them in any way. Thus there is perfect agreement on this point between the rules relating to the methods and means of warfare, on the one hand, and the basic philosophy of the founders of the Red Cross, on the other hand: the soldier who is rendered ' hors de combat ' by an injury or sickness is inviolable from that moment and shall be respected. (28) However, in contrast to sub-paragraphs (a) and (b) above, it is the wound or sickness, the unconscious or shipwrecked condition -- in short, the fact of being struck down, of having given up -- which in this case forms the basis of the [p.488] obligation. In fact it is not only because a person of the adverse Party is wounded, or partially handicapped, that this obligation arises, but because he is incapable of defending himself. In this respect the text goes back to the wording of Article 23(c) of the Hague Regulations, which prohibits especially the killing or wounding of an enemy who no longer has the means of defence. (29) On the other hand, there is no obligation to abstain from attacking a wounded or sick person who is preparing to fire, or who is actually firing, regardless of the severity of his wounds or sickness. The prohibition of attacks applies exclusively to persons ' hors de combat. ' The dead must be similarly respected. (30)

    4. ' Proviso regarding safeguard: in any of these cases abstaining from hostile acts and not attempting to escape '

    1621 A man who is in the power of his adversary may be tempted to resume combat if the occasion arises. (31) Another may be tempted to feign a surrender in order to gain an advantage, which constitutes an act of perfidy. (32) Yet another, who has lost consciousness, may come to and show an intent to resume combat. It is self-evident that in these different situations, and in any other similar situations, the safeguard ceases. Any hostile act gives the adversary the right to take countermeasures until the perpetrator of the hostile act is recognized, or in the circumstances, should be recognized, to be ' hors de combat ' once again. Obviously the remarks made above with regard to Article 35 ' (Basic Rules), ' paragraph 2, concerning the prohibition of superfluous injury or unnecessary suffering, continues to apply in full. The retort should be proportional to the measure of danger. It should not amount to a refusal to give quarter. Whatever the situation, the criterion of having been rendered ' hors de combat ' suffices.

    1622 When troops, after surrendering, destroy installations in their possession or their own military equipment, this can be considered to be a hostile act. The same applies in principle if soldiers ' hors de combat ' attempt to communicate with the Party to the conflict to which they belong, unless this concerns the wounded and sick who require assistance from this Party's medical service. (33)

    1623 An escape, or an attempt at escape, by a prisoner or any other person considered to be ' hors de combat, ' justifies the use of arms for the purpose of stopping him. However, once more, the use of force is only lawful to the extent that the circumstances require it. It is only permissible to kill a person who is escaping if there is no other way of preventing the escape in the immediate circumstances. It is prohibited to open fire as a preventive measure on persons who are ' hors de combat ' on the pretext that they are intending to escape, and that [p.489] this is known. (34) Furthermore, reference should be made to the corresponding provisions of the Third Convention (Articles 91 -94).

    1624 It is clear that it is sufficient for one of the two contingencies referred to here -- a hostile act or an attempt to escape -- to be committed, for the safeguard to cease. Moreover, these exceptions remain the same throughout the period of captivity.

    Paragraph 3 -- Release on the spot

    1625 In his report the Rapporteur states: "Paragraph 3, dealing with the release of prisoners who could not be evacuated, proved quite difficult". (35)

    "The phrase "unusual conditions of combat" was intended to reflect the fact that that circumstance would be abnormal. What, in fact, most representatives referred to was the situation of the long distance patrol which is not equipped to detain and evacuate prisoners. The requirement that all "feasible precautions" be taken to ensure the safety of released prisoners was intended to emphasize that the detaining Power, even in those extraordinary circumstances, was expected to take all measures that were practicable in the light of the combat situation. (36) In the case of a long distance patrol, it need) not render itself ineffective by handing the bulk of its supplies over to the released prisoners, but it should do all that it reasonably can do in view of all the circumstances to ensure their safety." (37)

    Committee III has adopted this paragraph of the report without comment. (38) Nevertheless, as a member of one of the delegations in Committee III subsequently remarked, there is another situation which inevitably springs to mind, namely the guerrilla. (39) Commando operations have certainly given rise to abuses in many circumstances, fully justifying the position adopted by the report, but they are not the only ones to pose problems, (40) and it is the formula relating [p.490] to the "unusual conditions of combat" which finally gained a consensus. The ICRC proposal, which was based by analogy on Article 2 , paragraph 4, of the Geneva Convention of 1906, foresaw the possibility for the Parties to the conflict of sending the wounded and sick they did not wish to keep as prisoners, back to their own country after ensuring they were in a condition to be transported. The tenor of the ICRC draft therefore went further, (41) but it was not adopted in this form.

    1626 ' Ratione personae, ' the scope of paragraph 3 is more restricted than that of paragraphs 1 and 2. It does not cover all persons, but only those "persons entitled to protection as prisoners of war". Read in a literal sense, the text applies equally to prisoners whose status is doubtful, as they are covered by the protection of the Third Convention pending clarification of their status by a competent tribunal (Third Convention, Article 5 , paragraph 2, and Protocol, Article 45 -- ' Protection of persons who have taken part in hostilities, ' paragraph 1). Since these prisoners cannot be evacuated in conditions of sufficient safety, there is little chance that they will ever be able to go before a "competent" tribunal. (42) They must therefore be released.

    1627 Thus there is actually an obligation here: "they shall be released" whenever the conditions of evacuation laid down in Articles 19 and 20 of the Third Convention cannot be met. Obviously this does not concern the wounded and sick who run a greater risk by being released than by remaining prisoner, because of their wounds or sickness (cf., by analogy, Third Convention, Article 19 , paragraph 2). This is where the notion of safety comes in. The release should be a humanitarian gesture, not an easy means of getting rid of prisoners considered to be an encumbrance. In fact, in some situations where the prisoner would have virtually no chance of survival, this would be equivalent to a refusal to give quarter. Conversely, this paragraph clearly indicates that, despite Articles 7 and 12 in particular, (43) the Third Convention should not be interpreted as preventing the release of prisoners, as this interpretation could result in a conduct of hostilities in which there would be no survivors. (44)

    1628 The text does not clarify at what level of authority decisions on release have to be taken. It might be the commanding officer in the field, or the Party to the conflict itself that gives the appropriate instructions to this effect. (45) The Conference clearly thought that this is a problem of internal organization on which the Party to the conflict concerned is competent to decide. (46)

    [p.491] 1629 Judiciously applied, this text represents a triumph of humanity. Perhaps it is to the credit of some that they have occasionally set an example on this point.

    Conclusion

    1630-- The safeguard applies both to regular combatants and those deemed to be irregulars, both to those whose status is unclear and to ordinary civilians. It prohibits making any person who is recognized, or who should be recognized by a reasonable man, as being ' hors de combat, ' the object of attack. This applies from the moment that it is recognized that the person is ' hors de combat. ' A defenceless adversary is ' hors de combat, ' whether or not he has laid down arms.

    1631-- Any subsequent hostile act entitles the adverse Party to take counter-measures, in proportion to the level of danger.

    1632-- Release on the spot must be a humanitarian act, and should therefore be carried out in such a way as to guarantee the safety of the prisoner who is released.

    ' J. de P. '


    NOTES

    (1) [(1) p.480] The first version presented at the Brussels Conference of 1874 contained the words "à merci", which in English would be "at the mercy" or "at the discretion" of somebody: "L'homme qui porte les armes [...] pour éviter la mort [...] demande pardon à celui qui va le frapper, il lui dit: faites-moi grâce de la vie, je me rends à vous, je me constitue votre prisonnier. Son adversaire s'arrête, l'homme est sauvé. Cet homme se rend donc réellement à merci dans le sens littéral du mot; mais ce mot n'implique en soi aucune contradiction, puisqu'il est entendu qu'on ne peut pas refuser de faire quartier. Ainsi, dans le moment où cet homme est en présence de la mort, il dit: donnez-moi la vie. Voilà l'idée que la clause veut exprimer. Mais les opérations se poursuivent; une charge a lieu; on ne peut pas garder étroitement les prisonniers. Il y en a qui, ayant mis bas les armes, les reprennent et retournent pour combattre ceux qui les ont désarmés. C'est pour punir cette sorte de trahison qu'on s'est servi du mot 'à merci': il est rendu en allemand par le terme 'auf Gnade oder Ungnade'." ("A man who bears arms and wants to avoid death begs the pardon of the person who is going to harm him; he says: 'Grant me my life. I surrender to you. I make myself your prisoner'. The adversary stops and the man is saved. Thus this man actually throws himself on the mercy of the adversary in the literal sense of the word; but the word does not in itself imply any contradiction, since it is understood that one cannot refuse to give quarter. Thus, at the moment that the man is in the presence of death, he says: 'Spare my life'. This is the idea that this sentence expresses. However, military operations continue; a charge takes place; it is not possible to guard the prisoners too closely. In some cases combatants who have laid down arms will take them up again and resume combat against those who disarmed them. It is in order to punish this sort of treachery that the term 'à merci' was introduced. It is translated in German by the term 'auf Gnade oder Ungnade'." (translated by the ICRC) (Declaration of General de Voigts-Rhetz, cf. A. Mechelynck, op. cit., pp. 245-246). "La Commission décide que le mot 'à merci, sera remplacé par celui de 'à discrétion' qui rend la même pensée et est plus en harmonie avec le langage moderne" ("The Committee decided that the term 'à merci' will be replaced by the term 'à discrétion', which expresses the same idea and is more appropriate for modern [French]" (translated by the ICRC), ibid., p. 246);

    (2) [(2) p.481] United Nations, Report of the Secretary General on respect for human rights in armed conflicts, A/8052 (25th Session), pp. 38-39, paras. 104-107;

    (3) [(3) p.481] ' CE 1972, Report ', Vol. II, p. 6, Arts. 34 and 35, and CE 1972, ' Commentaries, ' pp. 66-69;

    (4) [(4) p.481] See ' CE 1972, Report ', Vol. II, p. 56, CE/COM III/C 31; p. 62, III/C 61, and p. 63, III/C 65;

    (5) [(5) p.481] Art. 38: "1. It is forbidden to kill, injure, ill-treat or torture an enemy ' hors de combat '. An enemy ' hors de combat ' is one who, having laid down his arms, no longer has any means of defence or has surrendered. These conditions are considered to have been fulfilled, in particular, in the case of an adversary who: (a) is unable to express himself, or (b) has surrendered or has clearly expressed an intention to surrender, (c) and abstains from any hostile act and does not attempt to escape.
    2. Any Party to the conflict is free to send back to the adverse Party those combatants it does not wish to hold as prisoners, after ensuring that they are in a fit state to make the journey without any danger to their safety."
    Paragraph 3 was about giving quarter which is now dealt with in Article 40;

    (6) [(6) p.481] A first draft proposal was presented by some delegations (O.R. III, p. 170, CDDH/III/242), but it was largely rewritten by the Working Group of Committee III;

    (7) [(7) p.482] O.R. XV, p. 384, CDDH/236/Rev.1, para. 23;

    (8) [(8) p.482] ' CE 1972, Report ', Vol. II, p. 56, CE/COM III/C 29;

    (9) [(9) p.483] O.R. XV, p. 384, CDDH/236/Rev.1, para. 25; for the discussion on this point, see ad Art. 42, infra, p. 498;

    (10) [(10) p.483] See Art. 3, sub-para. (b);

    (11) [(11) p.483] This was not a new idea. Lieber's Instructions, adopted in 1863, i.e., the same year that the Red Cross was created, provide in Art. 115: "It is customary to designate by certain flags (usually yellow) the hospitals in places which are shelled, so that the besieging enemy may avoid firing on them. The same has been done in battles, when hospitals are situated within the field of the engagement." Para. 2 of Art. 116 continued: "An honorable belligerent allows himself to be guided by flags or signals of protection as much as the contingencies and the necessities of the fight will permit";

    (12) [(12) p.483] For the use of the white flag, see supra, ad Art. 38, p. 457 and infra, ad para. 2;

    (13) [(13) p.483] O.R. XV, p. 384, CDDH/236/Rev.1, para. 23;

    (14) [(14) p.483] Various formulae have been suggested in this respect during the course of the debates, such as "it is prohibited to deliberately make [...] the object of attack [...]", or "to make any person the object of attack in the knowledge that [...] or if it should have been known that [...]" (this proposition was adopted with respect to Art. 85, para. 3(e)), or "any person who is found or recognized to be hors de combat", and finally "to kill or wound intentionally [...]". Some feared that by referring too openly to the concept of intent, this would introduce an element of criminal law, while others considered that this might open the way to a pretext for failing to respect the rule;

    (15) [(15) p.484] Cf. "Trial of Gunther Thiele and Georg Steinert", 3 ' Law Reports, ' pp. 56-59;

    (16) [(16) p.485] For the discussion, see O.R. XIV, pp. 276-285, CDDH/III/SR.29, and O.R. XV, p. 384, CDDH/236/Rev. 1, para. 22;

    (17) [(17) p.485] Art. 42: "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". For the conditions that must be met if an escape is to be considered successful, see Third Convention, Art. 91;

    (18) [(18) p.485] First Convention, Art. 24; Second Convention, Arts. 36 and 37; Protocol, Art. 67;

    (19) [(19) p.485] For confirmation that Art. 41 (as well as Arts. 37, 38 and 39) of the Protocol applies to tactical or strategic airforce operations, see F.A. von der Heydte, "Air Warfare", in Bernhardt (ed.), op. cit., Instalment 3, 1982, p. 6;

    (20) [(20) p.486] The Assembly of the ICAO, the International Civil Aviation Organization, met in Montreal from 24 April to 10 May 1984 (25th session) and adopted there a proposal, dated 10 May 1984, to amend the International Civil Aviation Convention. Article 3 bis (a) of that Convention, as amended, now provides that "The contracting States recognize that every State must refrain from resorting to the use of weapons against civilian aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.";

    (21) [(21) p.486] On this subject, cf. commentary Art. 28, para. 2, supra, p. 302;

    (22) [(22) p.486] J. M. Spaight, op. cit., p. 402. See also, by way of background, "The Hague Rules of Air Warfare", 1923, Arts. 30-35, in J.M. Spaight, op. cit., pp. 502-503, and M.C.C. Bristol, "CRAF: Hawks in Doves Clothing", 20 ' The Air Force Law Review, ' No. 1, 1978, pp. 48-70;

    (23) [(23) p.486] Cf. by analogy, Art. 31, para. 2. For the conditions of flight of medical aircraft, see Arts. 24-31;

    (24) [(24) p.486] See for example, "Trial of Helmuth von Ruchteschell", 9 ' Law Reports, ' pp. 82 ff.;

    (25) [(25) p.487] See, for example, the French ' Règlement de discipline générale dans les armées, ' of 1 October 1966, Art. 34, para. 2;

    (26) [(26) p.487] F. Berber, op. cit., p. 168, and F.A. von der Heydte, op. cit., p. 7. The intention to obey an order to land is indicated by lowering the landing gear;

    (27) [(27) p.487] Some consider that it is also necessary to stop the engines, reply to the signals of the captor, abstain from handling weapons and raise the white flag (or put on lights at night) (see "Trial of Helmuth von Ruchteschell", 9 ' Law Reports, ' p. 89);

    (28) [(28) p.487] Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield (First Convention, Art. 15, para. 2);

    (29) [(29) p.488] Lieber stated that: "Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the Army of the United States, or is an enemy captured after having committed his misdeed." (Instructions, Art. 71);

    (30) [(30) p.488] See 15 ' Law Reports, ' p. 134, and First Convention, Arts. 15-17;

    (31) [(31) p.488] Supra, note 1; see also ' Commentary III, ' ad Art. 42, pp. 245-248;

    (32) [(32) p.488] Supra ad Art. 37, para. 1 (a), p. 437;

    (33) [(33) p.488] For the particular case of airmen in distress, see infra, ad Art. 42, p. 493;

    (34) [(34) p.489] 15 ' Law Reports ', pp. 186-87;

    (35) [(35) p.489] O.R. XV, p. 384, CDDH/236/Rev.1, para. 24;

    (36) [(36) p.489] At the time of signing the Protocol on 12 December 1977, the United Kingdom made a declaration stating: "in relation to Article 41, 57 and 58, that the word 'feasible' means that which is practicable or practically possible, taking into account all circumstances at the time including those relevant to the success of military operations";

    (37) [(37) p.489] O.R. XV, pp. 384, CDDH/236/Rev.1, para. 24;

    (38) [(38) p.489] Ibid., p. 129, CDDH/III/SR.52, para. 23;

    (39) [(39) p.489] Ph. Bretton, "Le problème...", op. cit., p. 32;

    (40) [(40) p.489] An idea of the situations envisaged by the Committee can be gained by reference to two amendments. The first text read as follows: "Where, for operational reasons, a commander in the field cannot hold prisoners under humane conditions, as required by the Third Convention, he is obliged, when releasing them, to take such precautions as may in the circumstances be reasonable to ensure their safety." (O.R. III, p. 170, CDDH/III/242, para. 2). Another amendment read as follows: "A Party to a conflict shall issue instructions to forces under its control that when members of the adversary forces have been captured under conditions of combat which prevent such captives from being evacuated as provided for in Part III, Section I, of the 1949 Geneva Convention for the Protection of Prisoners of War, such captives shall be released and such precautions as may in the circumstances be reasonable, shall be taken to ensure their safety" (ibid., p. 176, CDDH/III/243);

    (41) [(41) p.490] Supra, note 5;

    (42) [(42) p.490] However on this argument, see infra ad Art. 45, para. 1, p. 551;

    (43) [(43) p.490] Art. 7 refers to the non-renunciation of rights of prisoners of war, and Art. 12 provides that they are in the hands of the enemy Power, and not of the individuals or military units who have captured them;

    (44) [(44) p.490] O.R. XIV, p. 281, CDDH/III/SR.29, para. 59;

    (45) [(45) p.490] Cf. supra, note 40;

    (46) [(46) p.490] This is similar, mutatis mutandis, to an article in the United States ' Field Manual ' which authorizes a commanding officer, when circumstances require it, to permit a unit which has fallen into his hands to return to its own lines, admittedly on parole, which is not the case in this article: "However, special circumstances, such as inability of the victor to guard, evacuate and maintain large numbers of prisoners of war or to occupy the area in which military forces are present, may justify the victorious commanders in allowing the defeated force to remain in its present positions, to withdraw, or to disperse after having been disarmed and having given their paroles, provided that the giving of paroles is not forbidden by the law of their own country and that they are willing to give their paroles." ' (US Field Manual 27-10, ' para. 475 b) It is also appropriate to recall that, according to Art. 47, para. 2, of the Third Convention: "If the combat zone draws closer to a camp, the prisoners of war in the said camp shall not be transferred unless their transfer can be carried out in adequate conditions of safety, or if they are exposed to greater risks by remaining on the spot than by being transferred.";