Specially Protected Persons in Combat Situations (new title)

[jmm99]

You should look this up yourself because the rules will differ depending upon what laws your particular country has adopted. Here's a brief outline (US law-based and the most simple since the US has not adopted the Additional Protocols to Geneva).

If we (US) are dealing with a nation-state vs nation-state armed conflict with conventional armies, look to GC III dealing with EPWs. Basically, EPWs (from regular forces) must be adjudicated by a court akin to the courts-martial of the detaining forces.

If we (US) are dealing with an armed conflict not of an international character (most "Small Wars"), adjudications of members of irregular forces are governed by Common Article 3 (in all four GCs), which requires that sentences, including executions, must be pursuant to:

.... previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

No precise definition of a "regularly constituted court" is given. Since military commissions had been very much used before the GCs were drafted in the late 1940s, normal rules of construction would require that they be considered "regulaly constituted courts" unless expressly stated not to be so.

There's lots of room for argument with the GCs, especially with the Additional Protocols added or taken away. Whatever rules a nation finally adopts, it best be very clear about what they are and issue no apologies for their application.

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"Insiders", people who march to the beat of the same virtual drummer. In this discussion's context, they would be enemies who have roughly the same standards, with reciprocity in rights and obligations vice each other. E.g., Wehrmacht vice Western Allies in ETO WWII.

An "outsider" does not really hear the virtual drummer. He may know the code (but will use only those parts favorable to him; hence, there is no reciprocity and the code is perverted), or have a totally different code.

Regards

Mike

[jmm99]

Nothing that follows should be considered a legal opinion on anything discussed. It also is not what I would do, since I can't say what I would do. Let's call it it what is within my moral and ethical bounds.

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I said "limited quarter", not "no quarter"; and you first said:

from JMA
I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes.

So, some people become "prisoners" because they have intel value, but the others (not "useful" for lack of intel value) never make to the status of "prisoners".

and said earlier:

from JMA
4. And unofficially you put the word out that if your forces come across a unit which includes kids it will be "unlikely" that any of the older soldiers and leaders will be taken prisoner. (let them figure that out).

So, another group (defined by you; and probably guilty of war crimes) that will never make it to the status of "prisoners".

That adds up to "limited quarter" in my book; but it is not "no quarter".

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I see the answer to the following:

from JMA
OK so where do you draw the line as to how much preparatory bombardment and supporting fire is needed on a given objective?
...
But can you accept that if you have given a said objective a solid stonking the issue of prisoners, wounded or otherwise, is less likely to arise.

to be the military advantage or not as perceived by the field commander dependent on the assets at hand.

Given that I would go with the Hague rules, the legal (and as far as I am concerned the moral and ethical) burden is on the defender to separate civilians from combatants - not on the attacker. The Additional Protocols to Geneva turn that concept on its head and the attacker is made responsible for civilians caught in the attacked position (so also the current US ROEs I've seen). Which is why this post should not be read as a legal opinion (strictly a personal moral and ethical opinion).

But, if the field commander is confronted with a village occupied by combatants and civilians - combatants being spread throughout with multiple observation and firing points, I'd say the field commander would be within bounds to flatten the village and (at least) degrade its military capacity, rather than conducting a house by house infantry clearance operation.

Of course, well dug-in combatants (e.g., Monte Cassino) may survive a "solid stonking"; and if so, the bombardment might make a subsequent infantry assualt more difficult. The field commander would also have looked at bypassing or cordoning as well as the attack options.

What I've just described (as such) did not involve any reasoning to apply a "solid stonking" to avoid the issue of prisoners, wounded or otherwise. One could probably posit sets of circumstances (especially in the special ops arena) where prisoners are not in the cards. In that case, "solid stonkings" could avoid the issue of shooting them after the fact.

At what point does the field commander and his "solid stonkings" leave the "laws of honest warfare" and become an Anne de Joyeuse ?

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"Limited quarter" and "no quarter"

from JMA
What constitutes "no quarter given"? I understand that to mean that no prisoners are taken. That would include in shooting the wounded and any you try to surrender. I don't advocate that.
...
And as I asked M-A L: "Are you suggesting that a soldier is obligated to attempt to take prisoners under all circumstances or do you accept that it is enough to honour bona fide attempts to surrender where and when they occur?"

Agreed as to "no quarter given" meaning no prisoners are taken.

But even Subotai used the wagon wheel height as a test of whether prisoners would survive or not. So, mostly we deal with "limited quarter" issues, whether that is expressly admitted or not.

Given an infantry assault where opposition is continuing, two cases come up: a combatant who attempts to surrender; and a combatant who is downed (could appear dead or appear wounded). If the attacking soldier cannot safely take the surrender, or care for wounded, his military need could call for him to shoot both types of combatants. If he bypasses, either might shoot him in the back. On the other hand, where the dynamic situation has become static - complete end of firefight, the military reason (making sure you leave no enemy combatant alive behind you) disappears. Again, this is not the "school solution" and doesn't claim to be "legal".

Regards

Mike

[JMA]

Nothing that follows should be considered a legal opinion on anything discussed. It also is not what I would do, since I can't say what I would do. Let's call it it what is within my moral and ethical bounds.

[snip]

Regards

Mike

Mike, both your posts have been very helpful. Thanks for taking the time to respond. I will revert once I've been able to digest it all.

[M-A Lagrange]

JMA,

As said previously by Mike, preparatory bombing is regulated. There are obligations for the attaking party: not target purposely civilian installations and individuals if there are no military threat or clear objective.
Example: you do not bomb the church where all population is gathered while the defense points are 400 m far away. No military value, no military objective and targets only civilians.
Then if populations do not flee: see Mike. It's the responsability of the defnder to protect them during the assault.

Having people (you know what I mean) that do not make it to the status of prisonner... Well, that happens even if I do tend to think that it should not happen.
After it depends on your objective and mandate. If it is to conduct peace imposition mission and install pacified environment: those peole are probably in your list of targets who have to be arrested. This because you prepare the stabilisation/recovery phase.

[JMA]

JMA,

As said previously by Mike, preparatory bombing is regulated. There are obligations for the attaking party: not target purposely civilian installations and individuals if there are no military threat or clear objective.
Example: you do not bomb the church where all population is gathered while the defense points are 400 m far away. No military value, no military objective and targets only civilians.

Yes, I am completely happy with that. My conversation here relates to a combat environment where there are few civilians and civilian installations. The preparatory bombardment would comprise little more than airstrikes.

Using this example of where a say a battalion is in a prepared position say between 500-800 soldiers. My point was that one would surely attempt through "fire support" to inflict so many casualties that the final infantry assault would be merely mopping up.

Subject to weapon availability I would select the most devastating in terms of KIA. Working on the rule of thumb of WIA:KIA as 3:1 with other survivors either surrendering or running one really needs to maximize the KIA and increase the severity of the WIA to ensure they cannot return to battle at some later stage.

This led to my question as to the amount of preparatory bombardment after reading the comment about "showing no quarter". I appreciate that to attempt to regulate warfare or the conduct of warfare is a difficult matter and other than where civilians are deliberately targeted in the absence of the presence of the enemy, or WIA enemy deliberately shot/executed/murdered or enemy who are attempting to surrender or have surrendered being deliberately shot/executed/murdered where the line can be drawn.

Following on to this I have an interest in the Capt. Robert Semrau case where he decided to administer the coup de grâce to a "98%" dead Taliban.

Then if populations do not flee: see Mike. It's the responsability of the defnder to protect them during the assault.

We are talking civilians here, right. We often came across comfort women, cooks, cleaners and whatever in small numbers. Some how they figured out by sitting still out in the open was the way to survive... and it generally was.

Having people (you know what I mean) that do not make it to the status of prisonner... Well, that happens even if I do tend to think that it should not happen.

There is a line somewhere there. Let us assume that at some point for some reason they decide that for them the war is over. This could be seconds before an air strike is about to arrive on their position. Nothing one can do about that. Or it could be that the white flags are raised and clearly unarmed men with hands in the air leave their positions. In this case they have made it to POW status. If not there is a problem there.

[jmm99]

even in the conventional situation posited by you:

from JMA

My conversation here relates to a combat environment where there are few civilians and civilian installations. The preparatory bombardment would comprise little more than airstrikes.

Using this example of where a say a battalion is in a prepared position say between 500-800 soldiers. My point was that one would surely attempt through "fire support" to inflict so many casualties that the final infantry assault would be merely mopping up.

Subject to weapon availability I would select the most devastating in terms of KIA. Working on the rule of thumb of WIA:KIA as 3:1 with other survivors either surrendering or running one really needs to maximize the KIA and increase the severity of the WIA to ensure they cannot return to battle at some later stage.

Bombardment (air & arty, pre- and during assaults) may well only degrade the ability of good soldiers to resist in prepared positions.

Examples abound from WWI, WWII, Korea and Vietnam (also the pounding taken by the Finns on the Karelian Isthmus at the ends of both the Winter and Continuation Wars) where troops took a licking and kept on ticking. E.g., Hill 937, Ap Bia Mountain aka Hamburger Hill - Wiki History & Wiki Movie. From the History (emphasis added):

Casualties

U.S. losses during the ten-day battle reportedly totaled 72 dead and 372 wounded. To take the position, the 101st Airborne Division eventually committed five infantry battalions, about 1,800 men, and ten batteries of artillery. In addition, the U.S. Air Force flew 272 support sorties and expended more than 450 tons of bombs and 69 tons of napalm.

U.S. claimed the 7th and 8th Battalions of the 29th PAVN Regiment suffered 630 dead discovered on and around the battlefield, including many found in makeshift mortuaries within the tunnel complex, and an unknown number of wounded that likely totaled most of the remainder of the two units.

Since this engagement took place in a sparsely populated area of the A Shau, the presence of civilians was not an issue as to the tactics employed. Harry Summers wrote a more in-depth article, Battle for Hamburger Hill During the Vietnam War, in 1999 (30 years post). The media view at the time is illustrated by "The Battle for Hamburger Hill" (Time. 1969-05-30).

As I've read the posts here from folks who've done Iraq and Astan, the combat environments are much more complicated than more conventional environments where civilians are not a large issue. My conclusion (legal) is that the tactical issues of civilians, enemy wounded and enemy surrenders will be with us no matter how much technology and longer-distance fires we throw at the problem.

[jmm99]

This post is largely based on the ICRC publication, Customary International Humanitarian Law (CIHL), in two parts covering 161 rules:

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:

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):

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:

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:

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:

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.)

[jmm99]

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):

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:

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:

349. In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated that:

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:

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:

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:

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.)

[JMA]

From CIHL, v. I, p. 225 pdf:

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.

I hear this and that seems to be what I have understood.

This is why I can't understand the Capt. Robert Semrau case and the concept of "mercy killing". From the description of the wounds the man would not have made it and was in such a poor condition that he was unable to continue with any aggressive action. So why shoot him? He might get five years for it.

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.)

This is the difficult area. One needs to have a clear SOP on the conduct of the assault. We did. But there is always the potential for elements operating away from the eyes of others that they may go rogue. There have been a couple of such cases out of Iraq and Afghanistan which have been prosecuted.

[JMA]

As I've read the posts here from folks who've done Iraq and Astan, the combat environments are much more complicated than more conventional environments where civilians are not a large issue. My conclusion (legal) is that the tactical issues of civilians, enemy wounded and enemy surrenders will be with us no matter how much technology and longer-distance fires we throw at the problem.

Good post Mike... and yes I agree.