Specially Protected Persons in Combat Situations (new title)

[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.)