1 Attachment(s)
The De Hors Combat Rule (part 1)
This post is largely based on the ICRC publication, Customary International Humanitarian Law (CIHL), in two parts covering 161 rules:
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Customary International Humanitarian Law, Volume I: Rules, Jean-Marie Henckaerts and Louise Doswald-Beck, with contributions by Carolin Alvermann, Knut Dörmann and Baptiste Rolle (ICRC, 2005) (689 pages) (2.5 mb)
Customary International Humanitarian Law, Volume II: Practice, Parts 1 & 2; edited by Jean-Marie Henckaerts and Louise Doswald-Beck, with contributions by Carolin Alvermann, Knut Dörmann and Baptiste Rolle (ICRC, 2005) (4448 pages) (13.5 mb)
These gigantic volumes are not "The Law", or doctrine as such; but rather they are a compilation of sources to allow one to determine which legal concepts are generally accepted, and which are not. Setting out the full sources in a post or posts would be overkill. Therefore, I've attached a .pdf file with the complete CIHL annotations and sources for the portions of the one rule discussed here.
From CIHL, v. I, p. 225 pdf:
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Rule 47. Attacking persons who are recognised 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.
So far as CIHL is concerned, that rule and its three sub-catagories apply to both international armed conflicts (governed by GCs I-IV) and non-international armed conflicts (governed by Common Article 3 of the GCs) - see CIHL, v.I, pp. 225-227 pdf.
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The first sub-category ("anyone who is in the power of an adverse party") has presented no substantial definitional problems. The primary US field manual is a leading reference - FM 27-10, The Law of Land Warfare (1956, rev. 1976) (currently in effect):
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84. Duration of Protection
a. Treaty Provision.
The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation * * *. (GPW, art.5; see par. 71 herein.)
b. Power of the Enemy Defined. A person is considered to have fallen into the power of the enemy when he has been captured by, or surrendered to members of the military forces, the civilian police, or local civilian defense organizations or enemy civilians who have taken him into custody.
The key languiage is "who have taken him into custody." - police officers will be familiar with that language. Summary executions at this stage (post-firefight) would be considered a UCMJ offense.
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The second sub-category ("anyone who is defenceless ....") has presented some issues.
One rather obvious factual question is how does a soldier in a firefight determine whether the enemy soldier X feet away is "defenceless", when he is being shot at by enemy soldiers from other positions. The CIHL sources recognize that and other issues, but do not try to provide "bright-line" guidance.
E.g., we have CIHL v. II, p. 996 pdf:
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342. The Report on the Practice of Israel comments that:
It should nevertheless be understood that during combat operations, it is often impossible to ascertain exactly at which point an opposing soldier becomes incapacitated, as opposed to merely taking cover, hiding, or “playing dead” in order to open fire at a later stage. Therefore, the practical implementation of this rule requires the commanders in the field to make best-judgment decisions as to whether or not that person continues to pose a threat to friendly forces.[393]
Given the dispersed nature of modern warfare, "best-judgment decisions" will often have to be made by private soldiers as they advance in an assault.
The following two comments from CIHL, v II, apply to both the "defenceless" enemy and the "surrendering" enemy.
From pp. 968-969 pdf:
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158. Sweden’s IHL Manual .... adds that:
Persons hors de combat may not be attacked, but shall enjoy the protection of international humanitarian law provided they abstain from any hostile act and do not attempt to escape. In practice it can often be very hard to determine when this situation has arisen. If it is established that a person is hors de combat, he may not be subjected to attack, but he is not protected against the secondary effects of an attack on nearby objectives. It should also be noted that the mere presence of persons hors de combat does not imply that the place/object where they happen to be shall receive immunity.[171]
and from p. 983 pdf:
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253. Israel’s Manual on the Laws of War provides that:
The laws of war do set clear bars to the possibility of harming combatants when the combatant is found “outside the frame of hostilities”, as when he asks to surrender, or when he is wounded in a way that does not allow him to take an active part in the fighting. In such situations, it is absolutely prohibited to harm the combatant.
. . .
When is a combatant regarded as leaving the sphere of hostilities? While storming at zero distance, must a combatant hold his fire against a combatant raising his hands, but still holding his weapon? This is a difficult question to answer, especially under combat conditions. At any rate, there are several criteria that can guide us: Does the combatant show clear intent to surrender using universally accepted signs, such as raising his hands? Is the soldier seeking to surrender liable to jeopardize our forces or is the range considered not dangerous? Did the surrenderer lay down his arms?[281]
The soldier's perception of what happened in the assault seems the only test that reflects reality. That perception should be accepted unless that perception was faulty beyond a reasonable doubt.
(cont.)
The De Hors Combat Rule (part 2)
The third sub-category ("anyone who clearly expresses an intention to surrender ...") has generated a number of issues - several are commented above in part 1.
CIHL, v. I, p. 989 pdf, refers to a very important limitation on surrenders reflected in US doctrine; The Commander's Handbook on the Law of Naval Operations (NWP1-14M, MCWP 5-2.1, COMDTPUB P5800.7) (1995) (rev. in 2007 without substantial revision to this part):
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11.7 PRISONERS OF WAR
Combatants cease to be subject to attack when they have individually laid down their arms to surrender, when they are no longer capable of resistance, or when the unit in which they are serving or embarked has surrendered or been captured. However, the law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms. Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon-an attempt to surrender in the midst of a hard-fought battle is neither easily communicated nor received. The issue is one of reasonableness.
This manual applies directly to Marines (and not directly to Soldiers); but the "reasonableness" test is well attested in UK and US doctrine - e.g., pp. 229-230 pdf:
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Specific categories of persons hors de combat (cont.)
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.[52]
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.
More specifically, the DoD position is at CIHL, v. II, pp. 997-998 pdf:
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349. In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated that:
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The law of war obligates a party to a conflict to accept the surrender of enemy personnel and thereafter treat them in accordance with the provisions of the 1949 Geneva Conventions for the Protection of War Victims . . .
However, there is a gap in the law of war in defining precisely when surrender takes effect or how it may be accomplished in practical terms. Surrender involves an offer by the surrendering party (a unit or an individual soldier) and an ability to accept on the part of his opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon - an attempt at surrender in the midst of a hard-fought battle is neither easily communicated nor received. The issue is one of reasonableness.
A combatant force involved in an armed conflict is not obliged to offer its opponent an opportunity to surrender before carrying out an attack . . . In the process [of military operations], Coalition forces continued to accept legitimate Iraqi offers of surrender in a manner consistent with the law of war. The large number of Iraqi prisoners of war is evidence of Coalition compliance with its law of war obligations with regard to surrendering forces.[401]
The report also referred to two incidents during the Gulf War in which there had been allegations that quarter had been denied. The first incident involved an armoured assault on an entrenched position where tanks equipped with earthmoving plough blades were used to breach the trench line and then turned to fill in the trenches and the bunkers. The Department of Defense defended this tactic as consistent with the law of war. It noted that:
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In the course of the breaching operations, the Iraqi defenders were given the opportunity to surrender, as indicated by the large number of EPWs [enemy prisoners of war] taken by the division. However, soldiers must make their intent to surrender clear and unequivocal, and do so rapidly. Fighting from fortified emplacements is not a manifestation of an intent to surrender, and a soldier who fights until the very last possible moment assumes certain risks. His opponent either may not see his surrender, may not recognize his actions as an attempt to surrender in the heat and confusion of battle, or may find it difficult (if not impossible) to halt an onrushing assault to accept a soldier’s last-minute effort at surrender.[402]
The second incident concerned the attack on Iraqi forces while they were retreating from Kuwait City. The Department of Defense again defended the attack as consistent with the law of war. It noted that:
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The law of war permits the attack of enemy combatants and enemy equipment at any time, wherever located, whether advancing, retreating or standing still. Retreat does not prevent further attack . . . In the case at hand, neither the composition, degree of unit cohesiveness, nor intent of the Iraqi military forces engaged was known at the time of the attack. At no time did any element within the formation offer to surrender. CENTCOM [Central Command] was under no law of war obligation to offer the Iraqi forces an opportunity to surrender before the attack.[403]
350. The Report on US Practice states that:
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The opinio juris of the United States is that quarter must not be refused to an enemy who communicates an offer to surrender under circumstances permitting that offer to be understood and acted upon by U.S. forces. A combatant who appears merely incapable or unwilling to fight, e.g., because he has lost his weapon or is retreating from the battle, but who has not communicated an offer to surrender, is still subject to attack. (Persons hors de combat due to wounds, sickness or shipwreck must of course be respected in all circumstances, in accordance with the First and Second Geneva Conventions of 1949).[404]
Again, the thrust goes more to the soldier's perception - and very little to legalistic, hard-line litmus tests.
(cont.)
The De Hors Combat Rule (part 3)
Finally, two exceptions to "Rule 47" have been claimed to allow killing prisoners.
One is fairly obvious and generally permitted - CIHL, v. I, pp. 230-231 pdf:
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Loss of protection
According to Additional Protocol I, immunity from attack is conditional on refraining from any hostile act or attempt to escape.[59] This is also set forth in several military manuals.[60] 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”.[61] The Convention contains other specific rules applicable to the escape of prisoners of war.[62] 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.[63]
The other (that special circumstances allow prisoners to be killed) is more controversial. In the CIHL view, and in US doctrine (upon which that CIHL view is heavily based), that COA is banned. E.g., p. 230 pdf:
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Quarter under unusual circumstances of combat
The prohibition on attacking a person recognised 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.[53] This is restated in several military manuals.[54]
Here, CIHL cites and quotes FM 27-10, The Law of Land Warfare (1956, rev. 1976) (currently in effect):
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85. Killing of Prisoners
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 his prisoners on grounds of self-preservation, even in the case of airborne or commando operations, although the circumstances of the operation may make necessary rigorous supervision of and restraint upon the movement of prisoners of war.
FM 27-10, The Law of Land Warfare, applies to US Soldiers and Marines.
That ban on "special circumstances shootings" goes back a long way in US doctrine - e.g., the 1914 US Rules of Land Warfare:
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68. Execution of. - Prisouers of war may be fired upon and may be shot down while attempting to escape, or if they resist their guard, or attempt to assist their own army in anyway.[1] They may be executed by sentence of a proper court for any offense; punishable with death under the laws of the captor, after due trial nnd conviction. It may well be doubted whether such extreme necessity can ever arise that will compel or warrant a commander to kill his prisoners on the ground of self-preservation.[2]
1. They should be summoned to halt or surrender before firing. (Hague Con. 1899 Pt I, pp. 86, 87).
2. G.O. 100, 1863, art 60, in referring to giving of quarter says: "But a commander is permitted to direct his troops to give no quarter in great straits, when his own salvation makes it impossible to cumber himself with prisoners." The German Kriegsbrauch of 1902 says: "Prisoners can be killed * * * in case of extreme necessity, when other means of security are not available and the presence of the prisoners is a danger to one's own existence. * * * Exigencies of war and the safety of the state come first and not the consideration that prisoners of war must at any cost remain unmolested." No instance of resort to such executions have occured since 1799, when Napoleon bayonetted the Arabs at Jaffa.
The last sentence may or may not be accurate.
Such is the current state of the law according to the best sources I've found.
Regards
Mike
Thank you for the kind words
and now to your hypothetical of the para and his single ground opponent:
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from JMA
Lets take a hypothetical scenario where a person was parachuting in and coming into land was fired upon. This firing continued while he attempted to free himself from his harness. When free the person now able to use his weapon realised the firing had stopped and he heard the words "surrender comrade". The man didn't make it and on inspection of his weapon it was found he had run out of ammo. There were other actions going on all around but this little one-on-one was a separate action. Where would this fall within the law?
First off, the one on one "duel" cannot really be divorced from the "other actions going on all around." So, the para is probably in a situation where he cannot safely accept a surrender (as in the UK and US interpretations). But, for purposes of discussion, I'll accept the facts as given.
The facts as given are ambiguous. First off, nothing is said about the leg's actions and body posture. Did he drop his empty weapon and raise his hands ? Second, the statement "surrender comrade" is also ambiguous. Is the leg surrendering, or is he asking the para to surrender ? Third, the fact that the leg stopped firing could mean, besides out of ammo, a jam or a mag change.
I'd say probably a good shoot, if the para knows what the right words are and utters them - and if a video cam isn't filming the whole thing from a different angle (and attitude) :(.
Next up - CPT Semrau
Regards
Mike
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Truth, darned truth and videotapes
No video existed for the Semrau incident, he did not testify and the testimony was contradictory. Even where a video exists (as in the Apache Baghdad shootout, 2007 Apache Engagement on Video: Appears Incriminating), perceptions will differ.
The Semrau case (next post) has multiple, possible aspects. The more common charge ("you shot an unarmed, wounded man") comes from an assault unit moving through an objective - where that location is at least arguably hot.
Here is an example from 2004 Fallujah, where the CBS reporter (in his headline) condemned the Marine, despite the Corps exoneration of him (emphasis added):
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SAN DIEGO, May 4, 2005
No Charges In Fallujah Shooting
A Marine Who Shot An Unarmed, Wounded Iraqi Won't Face Charges
By David Hancock
(AP) A Marine corporal who was videotaped shooting an apparently injured and unarmed Iraqi in a Fallujah mosque last year will not face court-martial, the Marine Corps announced Wednesday.
Maj. Gen. Richard F. Natonski, commanding general of the I Marine Expeditionary Force, said that a review of the evidence showed the Marine's actions in the shooting were "consistent with the established rules of engagement and the law of armed conflict."
The corporal was not identified in a two-page statement issued by Camp Pendleton, the headquarters of the expeditionary force north of San Diego.
The Nov. 13 incident was videotaped by Kevin Sites, a freelance journalist on assignment for NBC.
The shooting occurred when a Marine unit entered the mosque and found five men wounded in fighting at the site the day before, when another Marine unit clashed with gunmen apparently using the mosque to fire from, according to Sites' broadcast.
In the video, as the cameraman moved into the mosque, a Marine in the background can be heard shouting obscenities and yelling that one of the men was only pretending to be dead. The Marine then raises his rifle toward an Iraqi lying on the floor of the mosque and shoots the man.
Before the opening of the Nov. 8 assault on rebel-held Fallujah, Marine commanders told infantrymen that the rules of engagement allowed for use of deadly force against men of military age deemed holding hostile intent, even if the enemy didn't fire on the Marines first.
snip from video:
Attachment 1267
Comment from a retired E-7 who watched that video with me: "Damned if I'd walk through that room without making sure that all the bad guys were dead." My dad had very similar sentiments re: WWII ETO; although my dad was very much in favor of taking prisoners whenever possible (also the E-7's attitude).
The Marine in the mosque knew what words to use - "playing dead" is an exception to the "de hors" rule. It is a matter of perception - and also one's attitude toward war and the particular war.
Regards
Mike
Semlau case - "mercy killing" or "mission saving" ?
Since CPT Semlau did not testify last I heard (the sentencing had been set for 21 Sep), his motive for doing whatever he did (the testimony was contradictory) was not clear at the trial.
If "mercy killing" is the real motive, saying that might be the honest thing to do; but it probably will not result in a not guilty - unless the jury is given something (no matter how bizarre) upon which to hang that "not guilty hat".
We Michiganders had a lot of "mercy killing" legal experience with Jack Kevorkian ("Dr. Death") in the 1990s. Kevorkian was represented by Geoffrey Fieger from 1994, in the first of several doctor-assisted suicide trials. Kevorkian was acquitted in that trial and all subsequent trials where Fieger represented him. Reduced to its simplest point, Geoff argued that Kavorkian had injected a drug cocktail for the purpose of relieving pain. Of course, a collateral effect of the powerful combo was also to end life.
While that argument got Kavorkian off, it was a subtrafuge not to Kavorkian's liking and his goal of legalizing assisted suicide. He fired Fieger for the next trial, represented himself on a pure assisted suicide platform, and was duly convicted.
A pretty good article on the Semrau case was posted by John Thompson ("John Thompson is president of the Mackenzie Institute. He has studied warfare all of his life, but his own years of military service were entirely peaceful.") in the National Post:
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John Thompson: Judging Robert Semrau
Posted: May 17, 2010
In October 2008, Captain Robert Semrau of the Royal Canadian Regiment was commanding a "mentoring team" of four Canadian soldiers operating with a company of Afghan National Army troops engaged in fighting Taliban insurgents in Helmand Province. Taliban insurgents opened fire on this force and were engaged by a supporting U.S. Apache gunship. The Taliban promptly withdrew, leaving one of their gunmen dead and one severely wounded.
The Afghan Army troops did not treat the wounded Talib, who had one leg shredded off and a foot severed, and may have also been wounded in the torso. Instead they apparently kicked and insulted him and then moved on. This created a dilemma for the Canadians. .... (much more in article).
While I agree with much of Thompson's sentiments in the rest of the article, I have to disgree with his characterization of the dilemma as being a legal one:
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The textbook on modern ethical warfare would advise immediately halting the Afghan troops; treating the badly wounded prisoner (who was apparently dying in great pain); calling for a medical evacuation; then, and only then, continuing with the mission. But textbook solutions are one thing; reality on the ground is something else.
What textbook I don't know; but, if it exists, it should be amended.
Even the ICRC publication, Customary International Humanitarian Law (CIHL), clearly states that operations do not have to be suspended because of wounded.
CIHL, v. I, p. 457:
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Rule 109. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.
Practice
Volume II, Chapter 34, Section A.
This rule applies to both international and non-international armed conflicts (CIHL, v. I, pp. 457-459)
The primary sources from CIHL, v. II, pp. 2627-2628 (note there is some ambiguity in language):
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2. Article 16 of the 1907 Hague Convention (X) provides that “after every engagement, the two belligerents, so far as military interests permit, shall take steps to look for the shipwrecked”.
3. Common Article 3 of the 1949 Geneva Conventions provides that “the wounded and sick shall be collected”. (Article 3 GC II adds the shipwrecked)
.....
5. Article 15, first paragraph, GC I provides that “at all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick”.
.....
7. Article 18, first paragraph, GC II states that “after each engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the shipwrecked, wounded and sick”.
.........
10. Article 16, second paragraph, GC IV provides that “as far as military considerations allow, each Party to the conflict shall facilitate the steps taken to search for the . . . wounded”.
.....
13. Article 8 AP II provides that “whenever circumstances permit, and particularly after an engagement, all possible measures shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked”. Article 8 AP II was adopted by consensus.
And with respect to Canada itself, from CIHL, v. II, p. 2630:
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30. Canada’s LOAC Manual states that “following an engagement, parties to a conflict are obliged to take all possible measures to search for and collect the wounded and sick and shipwrecked”.16 It adds that “appeals may be made to local inhabitants and relief societies to collect . . . the wounded and sick. Such inhabitants and relief societies, even in occupied or invaded territory, shall be permitted spontaneously to collect . . . such personnel.”17 In the case of non-international armed conflicts, the manual states that “after an engagement and whenever circumstances permit, all possible steps must be taken without delay to search for and collect the wounded, sick and shipwrecked”.18
31. Canada’s Code of Conduct instructs soldiers “to take all possible measures to search for and collect the wounded and sick from all sides, opposing forces or not, as well as civilians”.19 It also provides that “military authorities may ask the inhabitants in the area of conflict to voluntarily collect . . . the wounded under their direction”.20
16 Canada, LOAC Manual (1999), p. 9-1, § 8.
17 Canada, LOAC Manual (1999), p. 9-2, § 12.
18 Canada, LOAC Manual (1999), p. 17-4, § 32.
19 Canada, Code of Conduct (2001), Rule 7, § 3.
20 Canada, Code of Conduct (2001), Rule 10, § 8.
It is possible that Canada has elected to take a very broad view of its obligations to wounded - regardless of impact on military operations. If so, CPT Semrau was faced with a dilemma, not really of his own making.
Without having the transcripts themselves (of the pre-trial and trial), going very far with this case would be speculative.
Regards
Mike
