Specially Protected Persons in Combat Situations (new title)

[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.)

[jmm99]

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:

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:

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):

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:

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

[JMA]

Finally, two exceptions to "Rule 47" have been claimed to allow killing prisoners.

Loss of protection

According to Additional Protocol I, immunity from attack is conditional on refraining from any hostile act or attempt to escape.[59]

Yes that's as I understand it.

"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

Certainly that would not be accurate given the number of conflicts since 1799.

Mike, thank you for your effort on this. I have learned a lot and am sure others have too.

[jmm99]

and now to your hypothetical of the para and his single ground opponent:

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

[jmm99]

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):

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:

2004 Fallujah KIA.jpg

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

[jmm99]

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:

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:

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:

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):

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:

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

[M-A Lagrange]

Mike,

In a very stricto sensus interpretation of the GC, that canadian capt is right: you have to act with no delay to provide aid to the wounded.

Your point is more on the problematic of law versus necessity during military operations.
There is a difference between the Fallujah case and that one as the engagement duration has to be taken in account.
There is a difference between what fall under military necessity during an long open engagement, a battle of several days or month, and an engagement of several hours in which all military objectives have been reached. As during a patrol or a ratissage operation.

Military necessity is taken in account under circonstances and context. Not necessarely at charge, as in the case of Fallujah.

[JMA]

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".

[snip]

Semrau can't have it both ways.

If he says that the person was 98% dead then he obviously presented no threat to him or the Afghan soldiers he was with. Therefore there was no justifiable reason to shoot him.

I have a personal example of such a scenario where we came across an insurgent with a massive chest wound. Both lungs exposed with a big bleed. The odd twitch and the odd attempt to breathe. There was no chance, already 99% dead and unconscious. If it had been one of ours the same, no chance of survival.

I got the offer to do the "mercy" thing. Said no. He died in under 5 minutes. Put him in a body bag and that was it.

Just what would have been the point of shooting him? Seems more like it was something the shooter wanted rather than what the wounded guy needed.

[JMA]

snip from video:

2004 Fallujah KIA.jpg

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

Just a quick one on this.

Based on the one photo a newsman or prosecutor might be excused for thinking it was an execution. There the bodies are covered and lined up like we would do with our own dead and wounded if we had recovered them after a battle.

That said I would almost certainly have got that room fragged before entering (unless because of doorways, windows and/or holes in the walls the resulting shrapnel would have been a danger to own forces) and then followed it in (ever mindful of ricochets).

Also we worked in pairs. So in theory if the one guy thought or actually saw movement he would cover the person (as how he is standing in the photo) and call his buddy to check him out.

If there were no civilians around then I assume its a fairly routine house clearing exercise and it should be generally accepted that anyone hiding in a room will be dealt with in the process.

The problem often came when insurgents were either caught in a village or ran into a village. The clearing of such a village was fraught with danger especially when it was well know that under such circumstances they may well pull on a dress and try to pass as a woman and thereby escape.

The civilians (old men, women and children) would either sit in a group in an open area in plain sight or hide in a hut.

The hut clearing was very difficult because you did not know who was inside. One would call out for anyone inside to come out. There were times when they came out and times when they didn't either on there own accord or at the insistence of insurgents who were with them.

Then a burst was fired into the thatched roof (because the insurgents would hide in the roof area to either avoid being found or fire on someone entering the hut. (We called this the raining gook phenomenon after a corporal who had cleared some roofs reported "Hey Sir, its raining gooks down here".)

Th structure of the individual hut dictated that it might be dangerous to those outside to fragg the hut before entry then the idea was to use a machine gunner (FN MAG) to rip it through the door (firing the 7.62x51mm NATO round it was no problem). No problem that is unless there were civvies inside. There was no joy in killing civvies under such circumstances.

If contact had not been made yet hut searches were done by sticking your head in the door and going inside (remembering to look up). Heart stopping stuff.

Such is the nature of insurgencies where civvies are intermingled with insurgents. It is fraught with the potential to throw up a curved ball which some 18-9 year old must make a judgement call on in a split second.

I would say that (as as been raised by others already) the key is to differentiate between the time during which the actual battle is taking place and the post battle reorg/consolidation phase. I have some sympathy for a kid suddenly coming across a situation and making a split second possibly life saving decision as opposed to the predator who scours the post contact area in an attempt to find someone to help on his way. (if you see what I mean).

To illustrate this further (not to get into a war story but to set the scene) we were tasked to lift a "contact man" in a village over the border. My sergeant insisted that to physically subdue and truss up such a person was an NCO job so it was agreed that he, a corporal and a senior troopie with a torch would go inside to do the dirty stuff. Of course all hell broke loose and the contact man and his wife let out a series blood curdling screams while I heard my sergeant shout things like "shine the f***ing torch over here you c***" and "tie that arm" etc.

Of course the whole village woke up. Soon people were running all over the show. My "buddy" (an 18-9 year old) was standing near me with his back to a tree with his rifle butt/stock in the shoulder. As people emerged I saw he would raise his weapon and then lower it again as he identified it as a civvy. This happened a number of times and I thought nothing of it at the time. Neither did any of the other troops surrounding the village open fire.

Later I was to think how fortunate it was that the youngster with me nor any of the others had freaked out or made a bad judgement call. It could have turned into a blood bath. Its tough to demand 18-9 year olds make these decisions and get it right all of the time.

[jmm99]

MAL:

If you are looking for what defines the beginning and end of an armed conflict (the Yugoslav cases), you are on a wild goose chase so far as what defines the beginning and end of an engagement. An engagement (unless you have a one engagement armed conflict) is usually a very small part of an armed conflict.

Examples of engagements are assaults by a force on a fixed position held by a force, or ambushes by a force on a force. The limits (beginning, end and what stages between) of what constitutes an engagement are defined by the tactical doctrines of each combatant force and may differ. The basic stages that must be considered for inclusion within, or exclusion outside of, the limits of an engagement are: movement to contact, contact, breakoff of contact, withdrawal/exploitation.

CIHL Rule 109 is taken directly from AP II, Art. 8 (emphasis added):

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

Part III : Wounded, sick and shipwrecked

Article 8 -- Search

Whenever circumstances permit, and particularly after an engagement, all possible measure shall be taken, without delay, to search for and collect the wounded, sick and shipwrecked, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead, prevent their being despoiled, and decently dispose of them.

Neither the rule, the article nor the commentary define "engagement".

The commentary makes it clear that the rule does not reflect new law; and is not substantially different from the 1949 basic GCs or prior Geneva and Hague Conventions, except to emphasize that it will apply during an engagement "whenever circumstances permit".

The Commentary in large part (emphasis added):

General remarks

4648 Article 8 develops and reaffirms the obligation to collect for the wounded and sick, which is already contained in common Article 3, paragraph 1, sub-paragraph 2 , and which reads as follows: "The wounded and sick shall be collected and cared [p.1414] for". There is no corresponding provision in Protocol I, as this question is already dealt with by the Conventions (Article 15 , first Convention; Article 18 , Second Convention; Article 16 , fourth Convention). The text reflects Article 15 of the first Convention with slight differences in the wording and with the addition of the shipwrecked.

4649 Following the example of the Conventions, the ICRC draft (1) provided for the possibility of concluding local arrangements for the removal of the wounded and sick, elderly persons and children from the combat zone and from besieged or encircled areas. This provision, which was retained by Committee II, (2) was eliminated in the final version of the Protocol as some considered it to be rather unrealistic in the context of a non-international armed conflict. Nevertheless, this does not detract from the fact that evacuation measures should be encouraged whenever they are feasible.

4650 To search for and collect the wounded, sick and shipwrecked constitutes the implementation of the fundamental principle of protection and care set out in Article 7 ' (Protection and care). ' There is a duty to do so. All possible measures must be taken to fulfil this duty, "whenever circumstances permit, and particularly after an engagement". It is particularly after an engagement that it is necessary to search for victims, but the obligation goes further: it applies whenever circumstances permit. Article 15 of the first Convention provides that the Parties to the conflict must take all possible measures "at all times, and particularly after an engagement"; Article 18 of the Second Convention contains the same obligation, though it is limited by the words "after each engagement".

4651 These words were already contained in the corresponding provision of Hague Convention X of 1907 and in the Geneva Convention of 1906. The 1949 Conference substituted them in the first Convention by the words "at all times", but left the original expression in the Second Convention unchanged, in accordance with the views expressed by the experts in 1947. They considered that the expression "after each engagement" corresponded more closely to the specific conditions at sea. (3)

4652 Article 8 of the Protocol covers search for the wounded and sick, as well as the shipwrecked and the formula "whenever circumstances permit", which was adopted, takes into account the above-mentioned provisions of the first and Second Conventions; (4) it reflects the concrete possibilities of taking action.

4653 In 1949 the first Convention therefore extended the obligation in time, as the 1929 Convention, of which the formula was retained in the Second Convention, only laid down the duty to search for the wounded and sick "after each engagement", and only for those on the battlefield. In modern armed conflicts hostilities are more flaring up in varying degrees and moving from place to place; it would often be difficult to determine where exactly the battlefield is in place and in time. Therefore the obligation to respect the [p.1415] wounded and sick has a general scope. It applies to civilians, taking into account Article 18 ' (Relief societies and relief actions), ' paragraph 1, of the Protocol. (5) The obligation includes search operations as far as the authorities are concerned, also for medical and religious personnel and for armed units present in the area of military operations after an engagement.

4654 Victims must be protected against pillage and ill-treatment and they must receive adequate care. Such protection measures are particularly important during the period before the victims are able to be evacuated, when they are especially vulnerable. They reinforce the prohibition on pillage and violence to the life, health and physical or mental well-being which is already contained in Article 4 ' (Fundamental guarantees), ' paragraph 2(g) and (a), respectively. (6)

4655 "Adequate care" is first aid given on the spot, which may be of the utmost importance to avoid wounded, sick or shipwrecked succumbing during evacuation, which must take place as quickly as possible. Obviously such care includes ensuring the transport of the wounded to a place where they can be adequately cared for.

Gray areas exist throughout (besides no definition of an "engagement"); e.g., evacuation must be done "whenever feasible" (4649) and "as quickly as possible" (4655) - which are two different standards to me - maybe not to others.

--------------------------------
What is this ! - you have to be rescued:

from MAL
That’s the job of the stupid relief workers; my job to put you in danger because I did exactly that and now I am in deep #### and need armed rescue.

The local bad guys do not respect CIHL Rule 33:

Personnel and Objects Involved in a Peacekeeping Mission

Rule 33. Directing an attack against personnel and objects involved in a peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians and civilian objects under international humanitarian law, is prohibited.

I'm shocked - totally shocked.

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The rules may differ between any two countries (e.g., some have ratified various of the post-1949 Conventions; others have not). Interpretations of the rules will definitely vary; as will specific military doctrines.

Screening posters by 100 or + posts, and at least one post this year, yielded (as of yesterday) about 20% non-USAians. That is great; but all posters have to remember the diversity in doctrines and laws - no one's "holy rulebook" is the Bible or Satan's Workbook.

Regards

Mike

[JMA]

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:

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.

Yes, this is good and reasonable because the problem comes when with a sudden movement at a distance of a matter of meters someone tries to surrender. It is very difficult 1) for all those in the assault and able to shoot him to understand then and there what his intentions are and 2) how a commander would have to break the impetus of the assault to secure the prisoner.

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?

Again, the thrust goes more to the soldier's perception - and very little to legalistic, hard-line litmus tests. (cont.)

And difficult to prove and prosecute as with the Semrau case.