During the American Civil War, soldiers were faced with a number of ethical
Instructions for the Government of Armies of
the United States in the Field (Lieber Code). 24
April 1863.
The "Lieber Instructions" represent the first attempt to codify the laws of war. They were prepared
during the American Civil War by Francis Lieber, then a professor of Columbia College in New
York, revised by a board of officers and promulgated by President Lincoln. Although they were
binding only on the forces of the United States, they correspond to a great extend to the laws
and customs of war existing at that time. The "Lieber Instructions" strongly influenced the further
codification of the laws of war and the adoption of similar regulations by other states. They
formed the origin of the project of an international convention on the laws of war presented to
the Brussels Conference in 1874 and stimulated the adoption of the Hague Conventions on land
warfare of 1899 and 1907.
Lieber Code
From Wikipedia, the free encyclopedia
The Lieber Code of April 24, 1863, also known as Instructions for the
Government of Armies of the United States in the Field, General Order №
100,[1][2] or Lieber Instructions, was an instruction signed by US
President Abraham Lincoln to the Union Forces of the United States during
the American Civil War that dictated how soldiers should conduct themselves
in wartime. Its name reflects its author, the German-American legal scholar and
political philosopher Franz Lieber.
Historical background[edit]
Lieber had fought for Prussia in the Napoleonic Wars and had been wounded at
the Battle of Waterloo. He had lived and taught for two decades in South Carolina,
where he was exposed to the horrors of slavery. Beginning in October 1861, as
professor of history and political science at what became Columbia University,
Lieber delivered a series of lectures at the new Law School entitled "The Laws and
Usages of War". He believed the methods used in war needed to align with the
goals and that the ends must justify the means, and he published the lectures as
"International Law, or, Rules Regulating the Intercourse of States in Peace and
War".[3]
dilemmas. Lieber knew about some from his own European wartime experiences,
as well as through his sons (two of whom fought for the Union, and another died
fighting for the Confederacynear Williamsburg). While in St. Louis searching for
one of his sons, who had been wounded at Fort Donelson, Lieber met Union
General Henry Halleck, who had been a lawyer in civilian life. As the war dragged
on, the treatment of spies, guerrilla warriors, and civilian sympathizers became
especially troublesome. So too was the treatment of escaped slaves, who were
forbidden to return to their owners by an order of March 13, 1862. After Halleck
became general-in-chief in July, 1862, he solicited Lieber's views. The professor
responded with a report, "Guerilla Parties Considered With Reference to the Laws
and Usages of War", and Halleck ordered 5000 copies printed.[4] That same
summer, Lieber advised Secretary of War Edwin Stanton concerning the "military
use of colored persons".
By year's end, Halleck and Stanton invited Lieber to Washington to revise the 1806
Articles of War. Other members of the revision committee included Major
Generals Ethan Allen Hitchcock, George Cadwalader, and George L. Hartsuff,
and Brigadier General John Henry Martindale, but essentially Lieber was left to
draft instructions for Union soldiers facing these situations. Halleck edited them to
ensure nothing conflicted with Lincoln's Emancipation Proclamation. Then Lincoln
issued them in April, 1863.[3]
Main provisions[edit]
The main sections concerned martial law, military jurisdiction, and the treatment of
spies, deserters, and prisoners of war.
Ethical treatment[edit]
The document insisted upon the humane, ethical treatment of populations in
occupied areas. It was the first codified law that expressly forbade giving "no
quarter" to the enemy (i.e. killing prisoners of war), except in such cases when the
survival of the unit that held these prisoners was threatened. It forbade the use of
poisons, stating that use of such puts any force who uses them entirely outside the
pale of the civilized nations and peoples; it forbade the use of torture to extract
confessions; it described the rights and duties of prisoners of war and of capturing
forces. It described the state of war, the state of occupied territories, and the ends
of war, and discusses permissible and impermissible means to attain those ends;
it discussed the nature of states and sovereignties, and insurrections, rebellions,
1
and wars. As such, it is widely considered to be the first written recital of
the customary law of war, in force between the civilized nations and peoples
since time immemorial, and the precursor to the Hague Regulations of 1907, the
treaty-based restatement of the customary law of war.
Slavery and black prisoners of war[edit]
The Lieber Code was probably commissioned by the Lincoln Administration to
deal with the crisis touched off by the Emancipation Proclamation, [citation needed] which
the Confederacy insisted was in violation of the customary rules of warfare.
Moreover, Confederate officials such as Jefferson Davis had announced that the
Confederacy would treat black Union soldiers as criminals, not as soldiers, subject
to execution or re-enslavement upon capture.[5][6]
The Lieber Code defended the lawfulness of Emancipation under the laws of war
and insisted that those same laws prohibited discrimination on the basis of color
among combatants.[7]
One recent author says that the Code's association with Emancipation and the
problem of black Union soldiers was so close that it ought to be called not Lieber's
Code but Lincoln's Code since it was part and parcel of the most important decision
of Lincoln's presidency.[7]
Sterner measures[edit]
Both the Lieber Code and the Hague Convention of 1907, which took much of the
Lieber Code and wrote it into the international treaty law, included practices that
would be considered illegal or extremely questionable by today's standards. In the
event of the violation of the laws of war by an enemy, the Code
permitted reprisal (by musketry) against the enemy's recently captured POWs; it
permitted the summary execution (by musketry) of spies, saboteurs, francs-
tireurs, and guerrilla forces, if caught in the act of carrying out their missions.
(These allowable practices were later abolished by the Third and Fourth Geneva
Conventions of 1949, following World War II, which saw these practices in the
hands of totalitarian states used as the rule rather than the exception to such.)
Such terms reflected Lieber's deep interest in the ideas of Prussian military
strategist Carl von Clausewitz. They also arose out of one of the Code's central
aims, which was not merely to limit the war, but to legitimate its expansion in the
move to Emancipation and a more aggressive war effort.[8]
However, the code envisioned a reciprocal relationship between the population
and the Army. As long as the population did not resist military authority, it was to
be treated well. Should the inhabitants violate this compact by taking up arms and
supporting guerrilla movements, then they were open to sterner measures. Among
these were the imposition of fines, the confiscation and/or destruction of property,
the imprisonment and/or expulsion of civilians who aided guerrillas, the relocation
of populations, the taking of hostages, and the possible execution of guerrillas who
failed to abide by the laws of war.[9] It authorized the shooting on sight of all persons
not in uniform acting as soldiers and those committing, or seeking to commit,
sabotage.[10]
Part of the Code follows:
14. Military necessity, as understood by modern civilized nations, consists in the
necessity of those measures which are indispensable for securing the ends of the
war, and which are lawful according to the modern law and usages of war.
15. Military necessity admits of all direct destruction of life or limb of armed
enemies, and of other persons whose destruction is incidentally unavoidable in the
armed contests of the war; it allows of the capturing of every armed enemy, and
every enemy of importance to the hostile government, or of peculiar danger to the
captor; it allows of all destruction of property, and obstruction of the ways and
channels of traffic, travel, or communication, and of all withholding of sustenance
or means of life from the enemy; of the appropriation of whatever an enemy's
country affords necessary for the subsistence and safety of the Army, and of such
deception as does not involve the breaking of good faith either positively pledged,
regarding agreements entered into during the war, or supposed by the modern law
of war to exist. (...But...) Men who take up arms against one another in public war
do not cease on this account to be moral beings, responsible to one another and
to God.
16. Military necessity does not admit of cruelty—that is, the infliction of suffering
for the sake of suffering or for revenge, nor of maiming or wounding except in fight,
nor of torture to extort confessions. It does not admit of the use of poison in any
way, nor of the wanton devastation of a district. It admits of deception, but disclaims
acts of perfidy; and, in general, military necessity does not include any act of
hostility which makes the return to peace unnecessarily difficult.
Legacy[edit]
2
In the Civil War[edit]
Historians have often dismissed the role of the Code in the war effort. While it is
true that commanders such as William Tecumseh Sherman rarely, if ever,
consulted the Code in making combat decisions, the Code played a significant role
nonetheless in the war's last two years. It provided a blueprint for hundreds of war
crimes trials (i.e., charging people for violations of the laws and customs of war).
Also, its provisions on black soldiers bolstered the Union's unpopular decision to
cease prisoner exchanges so long as the South refused to exchange black
prisoners on equal terms with white ones.[7]
In international law [edit]
Participants in the international Hague Peace Conferences used Lieber's text as
the basis for negotiations which resulted in the Hague Conventions of 1899 and
1907. These two international agreements set forth laws of land and naval warfare.
Subsequently, during World War I and World War II, many of these laws were
broken. Following World War II, jurists at the Nuremberg Trials and the Tokyo
Trials ruled that by 1939 the rules for armed conflicts, particularly those
concerning belligerent and neutral nationals, had been recognized by all civilized
nations and thus could apply to officials even of countries that never signed the
Hague Conventions. Some features of the Lieber Code are still evident in
the Geneva Conventions of 1949.[7]
Philippine–American War[edit]
An abridged version of the Lieber Code was published in 1899 in The War of the
Rebellion: A Compilation of the Official Records of the Union and Confederate
Armies.[11] Lieber's son, Guido Norman Lieber, was Judge Advocate General of the
Army from 1895 until 1901, during the Spanish–American War and Philippine–
American War. The Lieber Code therefore was used extensively during this period
when considering and litigating actions by American forces against the native
population and Philippine revolutionaries (e.g., J. Franklin Bell and Littleton
Waller).
US Law of War Manual[edit]
In 2015, the United States Department of Defense published its Law of War
Manual.[12][13] It was updated and revised in May 2016.[14] The Manual explicitly
refers to the Lieber Code, and the Lieber Code's influence on the Law of War
Manual is apparent throughout.[15]
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols,
that establish the standards of international law for humanitarian treatment in war.
The singular term Geneva Convention usually denotes the agreements of 1949,
negotiated in the aftermath of the Second World War (1939–45), which updated
the terms of the two 1929 treaties, and added two new conventions. The Geneva
Conventions extensively defined the basic rights of wartime prisoners (civilians
and military personnel), established protections for the wounded and sick, and
established protections for the civilians in and around a war-zone. The treaties of
1949 were ratified, in whole or with reservations, by 196 countries.[1] Moreover, the
Geneva Convention also defines the rights and protections afforded to non-
combatants, yet, because the Geneva Conventions are about people in war, the
articles do not address warfare proper—the use of weapons of war—which is the
subject of the Hague Conventions (First Hague Conference, 1899; Second Hague
Conference 1907), and the bio-chemical warfare Geneva Protocol (Protocol for
the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and
of Bacteriological Methods of Warfare, 1925).
History[edit]
The Swiss businessman Henry Dunant went to visit wounded soldiers after
the Battle of Solferino in 1859. He was shocked by the lack of facilities, personnel,
and medical aid available to help these soldiers. As a result, he published his
book, A Memory of Solferino, in 1862, on the horrors of war.[2] His wartime
experiences inspired Dunant to propose:
 A permanent relief agency for humanitarian aid in times of war
 A government treaty recognizing the neutrality of the agency and allowing it to
provide aid in a war zone
The former proposal led to the establishment of the Red Cross in Geneva. The
latter led to the 1864 Geneva Convention, the first codified international treaty that
covered the sick and wounded soldiers in the battlefield. On 22 August 1864, the
Swiss government invited the governments of all European countries, as well as
the United States, Brazil, and Mexico, to attend an official diplomatic conference.
Sixteen countries sent a total of twenty-six delegates to Geneva. On 22 August
3
1864, the conference adopted the first Geneva Convention "for the Amelioration of
the Condition of the Wounded in Armies in the Field". Representatives of 12 states
and kingdoms signed the convention:[3][4]
 Swiss Confederation
 Grand Duchy of Baden
 Kingdom of Belgium
 Kingdom of Denmark
 Second French Empire
 Grand Duchy of Hesse
 Kingdom of Italy
 Kingdom of the Netherlands
 Kingdom of Portugal and the Algarves
 Kingdom of Prussia
 Kingdom of Spain
 Kingdom of Württemberg
For both of these accomplishments, Henry Dunant became corecipient of the
first Nobel Peace Prize in 1901.[5][6]
On 20 October 1868 the first, unsuccessful, attempt to expand the 1864 treaty was
undertaken. With the 'Additional Articles relating to the Condition of the Wounded
in War' an attempt was undertaken to clarify some rules of the 1864 convention
and to extend them to maritime warfare. The Articles were signed but never ratified
by all parties. Only the Netherlands and the United States ratified the Articles.[7] The
Netherlands later withdrew their ratification.[8]The protection of the victims of
maritime warfare would later be realized by the third Hague Convention of
1899 and the tenth Hague Convention of 1907.[9]
In 1906 thirty-five states attended a conference convened by the Swiss
government. On 6 July 1906 it resulted in the adoption of the "Convention for the
Amelioration of the Condition of the Wounded and Sick in Armies in the Field",
which improved and supplemented, for the first time, the 1864 convention.[10] It
remained in force until 1970 when Costa Rica acceded to the 1949 Geneva
Conventions.[11]
The 1929 conference yielded two conventions that were signed on 27 July 1929.
One, the "Convention for the Amelioration of the Condition of the Wounded and
Sick in Armies in the Field", was the third version to replace the original convention
of 1864.[12][9] The other was adopted after experiences in World War I had shown
the deficiencies in the protection of prisoners of war under the Hague Conventions
of 1899 and 1907. The "Convention relative to the Treatment of Prisoners of War"
was not to replace these earlier conventions signed at The Hague, rather it
supplemented them.[13][14]
Inspired by the wave of humanitarian and pacifistic enthusiasm following World
War II and the outrage towards the war crimes disclosed by the Nuremberg Trials,
a series of conferences were held in 1949 reaffirming, expanding and updating the
prior Geneva and Hague Conventions. It yielded four distinct conventions:
 The First Geneva Convention "for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field" was the fourth update of the
original 1864 convention and replaced the 1929 convention on the same
subject matter.[15]
 The Second Geneva Convention "for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" replaced
the Hague Convention (X) of 1907.[16] It was the first Geneva Convention on
the protection of the victims of maritime warfare and mimicked the structure
and provisions of the First Geneva Convention.[9]
 The Third Geneva Convention "relative to the Treatment of Prisoners of War"
replaced the 1929 Geneva Convention that dealt with prisoners of war.[17]
 In addition to these three conventions, the conference also added a new
elaborate Fourth Geneva Convention "relative to the Protection of Civilian
Persons in Time of War". It was the first Geneva Convention not to deal with
combatants, rather it had the protection of civilians as its subject matter. The
1899 and 1907 Hague Conventions had already contained some provisions
on the protection of civilians and occupied territory. Article 154 specifically
provides that the Fourth Geneva Convention is supplementary to these
provisions in the Hague Conventions.[18]
Despite the length of these documents, they were found over time to be
incomplete. In fact, the very nature of armed conflicts had changed with the
beginning of the Cold War era, leading many to believe that the 1949 Geneva
Conventions were addressing a largely extinct reality:[19] on the one hand, most
armed conflicts had become internal, or civil wars, while on the other, most wars
4
had become increasingly asymmetric. Moreover, modern armed conflicts were
inflicting an increasingly higher toll on civilians, which brought the need to provide
civilian persons and objects with tangible protections in time of combat, thus
bringing a much needed update to the Hague Conventions of 1899 and 1907. In
light of these developments, two Protocols were adopted in 1977 that extended
the terms of the 1949 Conventions with additional protections. In 2005, a third brief
Protocol was added establishing an additional protective sign for medical services,
the Red Crystal, as an alternative to the ubiquitous Red Cross and Red
Crescentemblems, for those countries that find them objectionable.
Commentaries[edit]
The Geneva Conventions of 12 August 1949. Commentary (The Commentaries)
is a series of four volumes of books published between 1952 and 1958 and
containing commentaries to each of the four Geneva Conventions. The series was
edited by Jean Pictet who was the vice-president of the International Committee
of the Red Cross. The Commentaries are often relied upon to provide authoritative
interpretation of the articles.[20]
Contents[edit]
The Geneva Conventions are rules that apply only in times of armed conflict and
seek to protect people who are not or are no longer taking part in hostilities; these
include the sick and wounded of armed forces on the field, wounded, sick,
and shipwrecked members of armed forces at sea, prisoners of war, and civilians.
The first convention dealt with the treatment of wounded and sick armed forces in
the field.[21] The second convention dealt with the sick, wounded, and shipwrecked
members of armed forces at sea.[22][23] The third convention dealt with the treatment
of prisoners of war during times of conflict.[24] The fourth convention dealt with the
treatment of civilians and their protection during wartime.[25]
Conventions[edit]
In diplomacy, the term convention does not have its common meaning as an
assembly of people. Rather, it is used in diplomacy to mean an international
agreement, or treaty.
 The First Geneva Convention "for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field" (first adopted in
1864,[26] revised in 1906,[27] 1929[28] and finally 1949);[29]
 The Second Geneva Convention "for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea" (first
adopted in 1949, successor of the Hague Convention (X) 1907);[30]
 The Third Geneva Convention "relative to the Treatment of Prisoners of War"
(first adopted in 1929,[31] last revision in 1949);[32]
 The Fourth Geneva Convention "relative to the Protection of Civilian Persons
in Time of War" (first adopted in 1949, based on parts of the Hague
Convention (II) of 1899 and Hague Convention (IV) 1907).[33]
With two Geneva Conventions revised and adopted, and the second and fourth
added, in 1949 the whole set is referred to as the "Geneva Conventions of 1949"
or simply the "Geneva Conventions". Usually only the Geneva Conventions of
1949 are referred to as First, Second, Third or Fourth Geneva Convention. The
treaties of 1949 were ratified, in whole or with reservations, by 196 countries.[1]
Protocols[edit]
The 1949 conventions have been modified with three amendment protocols:

Protocol I (1977) relating to the Protection of Victims of International Armed
Conflicts[34]
 Protocol II (1977) relating to the Protection of Victims of Non-International
Armed Conflicts[35]
 Protocol III (2005) relating to the Adoption of an Additional Distinctive
Emblem.[36]
Application[edit]
The Geneva Conventions apply at times of war and armed conflict to governments
who have ratified its terms. The details of applicability are spelled out in Common
Articles 2 and 3. The topic of applicability has generated some controversy. When
the Geneva Conventions apply, governments have surrendered some of their
national sovereignty by signing these treaties.
Common Article 2 relating to international armed conflicts[edit]
This article states that the Geneva Conventions apply to all cases
of international conflict, where at least one of the warring nations have ratified the
Conventions. Primarily:
5
 The Conventions apply to all cases of declared war between signatory
nations. This is the original sense of applicability, which predates the 1949
version.
 The Conventions apply to all cases of armed conflict between two or more
signatory nations, even in the absence of a declaration of war. This language
was added in 1949 to accommodate situations that have all the characteristics
of war without the existence of a formal declaration of war, such as a police
action.[23]
 The Conventions apply to a signatory nation even if the opposing nation is not
a signatory, but only if the opposing nation "accepts and applies the
provisions" of the Conventions.[23]
Article 1 of Protocol I further clarifies that armed conflict against colonial
domination and foreign occupation also qualifies as an international conflict.
When the criteria of international conflict have been met, the full protections of the
Conventions are considered to apply.
Common Article 3 relating to non-international armed
conflict[edit]
This article states that the certain minimum rules of war apply to armed
conflicts " where at least one Party is not a State".[37] The interpretation of the
term armed conflict and therefore the applicability of this article is a matter of
debate.[23] For example, it would apply to conflicts between the Government and
rebel forces, or between two rebel forces, or to other conflicts that have all the
characteristics of war, whether carried out within the confines of one country or
not.[38] There is two criteria to distinguish non-international armed conflicts from
lower forms of violence. The level of violence has to be of certain intensity, for
example when the state cannot contain the situation with regular police forces.
Also, involved non-state groups need to have a certain level of organization, like a
military command structure.[39]
The other Geneva Conventions are not applicable in this situation but only the
provisions contained within Article 3,[23] and additionally within the language
of Protocol II. The rationale for the limitation is to avoid conflict with the rights
of Sovereign States that were not part of the treaties. When the provisions of this
article apply, it states that:[40]
 Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria. To this end,
the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
 violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;
 taking of hostages;
 outrages upon dignity, in particular humiliating and degrading treatment;
and
 the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording
all the judicial guarantees which are recognized as indispensable by
civilized peoples.
 The wounded and sick shall be collected and cared for.
Enforcement[edit]
Protecting powers[edit]
See also: Protecting power
The term protecting power has a specific meaning under these Conventions. A
protecting power is a state that is not taking part in the armed conflict, but that has
agreed to look after the interests of a state that is a party to the conflict. The
protecting power is a mediator enabling the flow of communication between the
parties to the conflict. The protecting power also monitors implementation of these
Conventions, such as by visiting the zone of conflict and prisoners of war. The
protecting power must act as an advocate for prisoners, the wounded, and
civilians.
Grave breaches[edit]
Not all violations of the treaty are treated equally. The most serious crimes are
termed grave breaches, and provide a legal definition of a war crime. Grave
breaches of the Third and Fourth Geneva Conventions include the following acts
if committed against a person protected by the convention:
6
 willful killing, torture or inhumane treatment, including biological experiments
 willfully causing great suffering or serious injury to body or health
 compelling a protected person to serve in the armed forces of a hostile power
 willfully depriving a protected person of the right to a fair trial if accused of a
war crime.
Also considered grave breaches of the Fourth Geneva Convention are the
following:
 taking of hostages
 extensive destruction and appropriation of property not justified by military
necessity and carried out unlawfully and wantonly
 unlawful deportation, transfer, or confinement.[41]
Nations who are party to these treaties must enact and enforce legislation
penalizing any of these crimes. Nations are also obligated to search for persons
alleged to commit these crimes, or persons having ordered them to be committed,
and to bring them to trial regardless of their nationality and regardless of the place
where the crimes took place.[42]
The principle of universal jurisdiction also applies to the enforcement of grave
breaches when the UN Security Council asserts its authority and jurisdiction from
the UN Charter to apply universal jurisdiction. The UNSC did this when they
established the International Criminal Tribunal for Rwanda and the International
Criminal Tribunal for the former Yugoslavia to investigate and/or prosecute alleged
violations.
Legacy[edit]
Although warfare has changed dramatically since the Geneva Conventions of
1949, they are still considered the cornerstone of contemporary international
humanitarian law.[43] They protect combatants who find themselves hors de
combat, and they protect civilians caught up in the zone of war. These treaties
came into play for all recent international armed conflicts, including the War in
Afghanistan,[44] the 2003 invasion of Iraq, the invasion of Chechnya (1994–
present),[45] and the 2008 War in Georgia. The Geneva Conventions also protect
those affected by non-international armed conflicts such as the Syrian Civil
War.[dubious – discuss]
The lines between combatants and civilians have blurred when the actors are not
exclusively High Contracting Parties (HCP).[46] Since the fall of the Soviet Union,
an HCP often is faced with a non-state actor,[47] as argued by General Wesley
Clark in 2007.[48] Examples of such conflict include the Sri Lankan Civil War,
the Sudanese Civil War, and the Colombian Armed Conflict, as well as most
military engagements of the US since 2000.
Some scholars hold that Common Article 3 deals with these situations,
supplemented by Protocol II (1977).[dubious – discuss] These set out minimum legal
standards that must be followed for internal conflicts. International tribunals,
particularly the International Criminal Tribunal for the former Yugoslavia (ICTY),
have clarified international law in this area.[49] In the 1999 Prosecutor v. Dusko
Tadic judgement, the ICTY ruled that grave breaches apply not only to
international conflicts, but also to internal armed conflict.[dubious – discuss]Further, those
provisions are considered customary international law.
Controversy has arisen over the US designation of irregular opponents as
"unlawful enemy combatants" (see also unlawful combatant) especially in
the SCOTUS judgments over the Guantanamo Bay brig facility Hamdi v.
Rumsfeld, Hamdan v. Rumsfeld and Rasul v. Bush,[50] and later Boumediene v.
Bush. President George W. Bush, aided by Attorneys-General John
Ashcroft and Alberto Gonzales and General Keith B. Alexander, claimed the
power, as Commander in Chief of the Armed Forces, to determine that any person,
including an American citizen, who is suspected of being a member, agent, or
associate of Al Qaeda, the Taliban, or possibly any other terrorist organization, is
an "enemy combatant" who can be detained in U.S. military custody until hostilities
end, pursuant to the international law of war.[51][52][53]
The application of the Geneva Conventions to the 2014 conflict in Ukraine (Crimea)
is a troublesome problem because some of the personnel who engaged in combat
against the Ukrainians were not identified by insignia, although they did wear
military-style fatigues.[54]The types of comportment qualified as acts
of perfidy under jus in bello doctrine are listed in Articles 37 through 39 of the
Geneva Convention; the prohibition of fake insignia is listed at Article 39.2, but the
law is silent on the complete absence of insignia. The status of POW captured in
this circumstance remains a question.
Educational institutions and organizations including Harvard
University,[55][56] the International Committee of the Red Cross,[57] and the Rohr
7
Jewish Learning Institute use the Geneva Convention as a primary text  European Convention on Human Rights (1950)
investigating torture and warfare.[58]  American Convention on Human Rights (1969)

What is the difference between IHL African Charter on Human and Peoples' Rights (1981).
These treaties are supervised by human rights bodies, such as the Human Rights
and human rights law? Committee for the International Covenant on Civil and Political Rights and the
European Court for Human Rights for the European Convention on Human
Rights.
WHAT IS INTERNATIONAL HUMAN RIGHTS LAW?
Human rights law is a set of international rules, established by treaty or custom,
While IHL and human rights law have developed in their separate ways, some
on the basis of which individuals and groups can expect and/or claim certain
human rights treaties include provisions that come from IHL: for instance, the
rights that must be respected and protected by their States. The body of
Convention on the Rights of the Child and its Optional Protocol on the
international human rights standards also contains numerous non-treaty-based
involvement of children in armed conflict, and the Convention on Enforced
principles and guidelines ('soft law').
Disappearance.
The main treaties of human rights law are given below:
a) Universal instruments IHL and international human rights law are complementary bodies of
international law that share some of the same aims. Both IHL and human rights
law strive to protect the lives, the health and the dignity of individuals, albeit
 Convention on the Prevention and Punishment of the Crime of Genocide
from different angles – which is why, while very different in formulation, the
(1948)
essence of some of the rules is similar. For example, both IHL and human rights
 Convention on the Elimination of All Forms of Racial Discrimination
law prohibit torture or cruel treatment, prescribe basic rights for persons subject
(1965)
to criminal process, prohibit discrimination, contain provisions for the
 International Covenant on Civil and Political Rights (1966)
protection of women and children, and regulate aspects of the right to food and
 International Covenant on Economic, Social and Cultural Rights (1966)
health. There are however important differences between them: their origins,
 Convention on the Elimination of All Forms of Discrimination against
the scope of their application, the bodies that implement them, and so on.
Women (1979)
 Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (1984) Origins
 Convention on the Rights of the Child (1989) IHL, the origins of which are ancient, was codified in the second half of the 19th
 International Convention on the Protection of the Rights of All Migrant century, under the influence of Henry Dunant, the founding father of the
Workers and Members of their Families (1999) International Committee of the Red Cross. (See Question 6.) Human rights law
 International Convention for the Protection of All Persons from is a more recent body of law: it had its origins in certain national human rights
Enforced Disappearance (2006) declarations influenced by the ideas of the Enlightenment (such as the United
 Convention on the Rights of Persons with Disabilities (2006) States Declaration of Independence in 1776 and the French Declaration of the
b) Regional instruments Rights of Man and of the Citizen in 1789). It was only after the Second World
8
War that human rights law emerged, under the auspices of the United Nations,
as a branch of international law. The Universal Declaration of Human Rights
of 1948 first defined human rights law at the international level in a non-binding
General Assembly resolution. It was only in 1966 that this Declaration was
translated into universal human rights treaties: the International Covenant on
Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights, both of 1966. (See box.)
Temporal scope of application
While IHL applies exclusively in armed conflict (see Question 5),
human rights law applies, in principle, at all times, i.e. in peacetime and
during armed conflict. However, unlike IHL, some human rights treaties
permit governments to derogate from certain obligations during
public emergencies that threaten the life of the nation. Derogation must,
however, be necessary and proportional to the crisis, must not be introduced
on a discriminatory basis and must not contravene other rules of
international law – including provisions of IHL. Certain human rights can
never be derogated from: among them, the right to life, the prohibition
against torture or cruel, inhuman or degrading treatment or punishment,
the prohibition against slavery and servitude and the prohibition
against retroactive criminal laws.
Geographical scope of application
Another major difference between IHL and human rights law is
their extraterritorial reach. That IHL governing international armed
conflicts applies extraterritorially is not a subject of controversy, given that
its purpose is to regulate the conduct of one or more States involved in
an armed conflict on the territory of another. The same reasoning applies in
non-international armed conflicts with an extraterritorial element: the parties
to such conflicts cannot be absolved of their IHL obligations when the conflict
reaches beyond the territory of a single State. Despite the views of a few
important dissenters, it is widely accepted that human rights law applies
extraterritorially based, inter alia, on decisions by regional and international
courts. The precise extent of such application, however, is yet to be
determined. Human rights bodies generally admit the
extraterritorial application of human rights law when a State exercises control
over a territory (e.g. occupation) or a person (e.g. detention). Human rights
case law is unsettled, however, on the extraterritorial application of
human rights norms governing the use of force.
Personal scope of application
IHL aims to protect persons who are not or are no longer taking direct part in
hostilities. It protects civilians and combatants hors de combat, such as the
wounded, the sick and the shipwrecked or prisoners of war.
(See Question 7.) Human rights law, developed primarily for
peacetime, applies to all persons within the jurisdiction of a State. Unlike IHL,
it does not distinguish between combatants and civilians or provide for
categories of 'protected person'.
Parties bound by IHL and human rights law
IHL binds all parties to an armed conflict and thus establishes an equality of
rights and obligations between the State and the non-State side for the benefit
of everyone who may be affected by their conduct (an essentially 'horizontal'
relationship). (See Question 8.) Human rights law explicitly governs the
relationship between a State and persons who are on its territory and/or
subject to its jurisdiction (an essentially 'vertical' relationship), laying out the
obligations of States vis à vis individuals across a wide spectrum of conduct.
Thus, human rights law binds only States, as evidenced by the fact that human
rights treaties and other sources of human rights standards do not create legal
obligations for non-State armed groups. The reason for this is that most
groups of this kind are unable to comply with the full range of obligations
under human rights law because, unlike governments, they cannot carry out
the functions on which the implementation of human rights norms is
premised. There is a notable exception to this generalization about non-State
9
armed groups: those cases in which a group, usually by virtue of stable control
of territory, has the ability to act like a State authority and where its human
rights responsibilities may therefore be recognized de facto.
Substantive scope of application
IHL and human rights law share common substantive rules (such as
the prohibition of torture), but they also contain very different provisions.
IHL deals with many issues that are outside the purview of human rights
law, such as the status of 'combatants' and 'prisoners of war', the protection
of the red cross and red crescent emblems and the legality of specific kinds
of weapon. Similarly, human rights law deals with aspects of life that are
not regulated by IHL, such as the freedom of the press, the right to
assembly, to vote, to strike, and other matters. Furthermore, there are areas
that are governed by both IHL and human rights law, but in different –
and sometimes contradictory – ways. This is especially the case for the use
of force and detention.
 Regarding the use of force, IHL rules on the conduct of hostilities
recognize that the use of lethal force is inherent to waging war. This is
because the ultimate aim of military operations is to prevail over the
enemy's armed forces. Parties to an armed conflict are thus permitted,
or at least are not legally barred from, attacking each other's military
objectives, including enemy personnel. Violence directed against those
targets is not prohibited 40 by IHL, regardless of whether it is inflicted
by a State or a non-State party to an armed conflict. Acts of violence
against civilians and civilian objects – as well as indiscriminate attacks
– are, by contrast, unlawful because one of the main purposes of IHL is
to spare civilians and civilian objects the effects of hostilities; and,
under IHL, precautions must be taken in order to minimize civilian
losses. (See Question 11.) Human rights law was conceived to protect
persons from abuse by the State; it regulates, not the conduct of
hostilities between parties to a conflict, but the manner in which force
may be used in law enforcement. Law enforcement is predicated upon
a 'capture-rather-than-kill' approach: the use of force must be the last
resort for protecting life, when other means are ineffective or without
promise of achieving the intended result, and must be strictly
proportionate to the legitimate aim to be achieved (e.g. to prevent crime,
to effect or assist in the lawful arrest of offenders or suspected offenders,
and to maintain public order and security).
 Concerning detention, while both IHL and human rights law provide
for rules on the humane treatment of detainees, on detention
conditions and on fair trial rights, differences emerge when it comes to
procedural safeguards in internment, i.e. the non-criminal detention of
a person based on the seriousness of the threat that his or her activity
poses to the security of the detaining authority. Internment is not
prohibited during armed conflict and, in general, a judicial review of the
lawfulness of the detention is not required under IHL. (See Question
10.) Outside armed conflict, noncriminal (i.e. administrative) detention
is highly unusual. In the vast majority of cases, people are deprived of
their liberty because they are suspected of having committed a criminal
offence. The International Covenant on Civil and Political Rights
guarantees the right to liberty of person and provides that every
individual who has been detained, for whatever reason, has the right to
judicial review of the lawfulness of his or her detention. This area of
human rights law is based on the assumption that the courts
are functioning, that the judicial system is capable of absorbing all
persons arrested at any given time regardless of their numbers, that legal
counsel is available, that law enforcement officials have the capacity to
perform their tasks, etc. Circumstances are very different during armed
conflict, which is reflected in the provisions of IHL.
The interplay of IHL and human rights rules governing the use of force
and procedural safeguards for internment, at least in international armed
conflicts, must be resolved by reference to the lex specialis, that is the
10
provisions of IHL that were specifically designed to deal with those two areas.
(See box.)
INTERPLAY OF IHL AND HUMAN RIGHTS LAW
The interplay of IHL and human rights law remains the subject of much legal
attention, particularly because of its consequences for the conduct of military
operations. In its very first statement on the application of human rights in
situations of armed conflict, the 1996 Advisory Opinion on the Legality of the
Threat or Use of Nuclear Weapons, the International Court of Justice observed
that the protection provided by the International Covenant on Civil and
Political Rights did not cease in times of war and that, in principle, the right
not to be arbitrarily deprived of one's life applied also in hostilities. The
Court added that what constituted arbitrary deprivation of life had to be
determined by the applicable lex specialis, namely, the law applicable in
armed conflict, which is designed to regulate the conduct of hostilities.
This statement has generally been interpreted as settling the issue of the
interplay of IHL and human rights law and as implying that human rights law,
deemed to apply at all times, constitutes the lex generalis, while IHL, whose
application is triggered by the occurrence of armed conflict, constitutes the lex
specialis. In other words, when human rights law and IHL are in conflict, the
latter is deemed to prevail, since it was conceived specifically to deal with
armed conflict.
While the meaning and even the utility of the doctrine of lex specialis have
been called into question, there is a general acceptance of its indispensability
for determining the interplay of IHL and human rights law. Although,
generally speaking, these two branches of international law are
complementary, the notion of complementarity cannot resolve the intricate
legal issues of interplay that sometimes arise. In some instance, IHL and
human rights rules might produce conflicting results when applied to the same
facts because they reflect the different circumstances for which they were
primarily developed.
Martens Clause
From Wikipedia, the free encyclopedia
The Martens Clause (pronounced /mar'tɛnz/) was introduced into the preamble to
the 1899 Hague Convention II – Laws and Customs of War on Land.[1]
The clause took its name from a declaration read by Friedrich Martens,[2] the
Russian delegate at the Hague Peace Conferences of 1899.[3] It reads as follows:
Until a more complete code of the laws of war is issued, the High Contracting
Parties think it right to declare that in cases not included in the Regulations adopted
by them, populations and belligerents remain under the protection and empire of
the principles of international law, as they result from the usages established
between civilized nations, from the laws of humanity and the requirements of the
public conscience.
— Convention with respect to the laws of war on land (Hague II), 29 July
1899.[4][5][1][6]
The Clause appears in a slightly modified form in the 1907 Hague conventions:
Until a more complete code of the laws of war has been issued, the High
Contracting Parties deem it expedient to declare that, in cases not included in the
Regulations adopted by them, the inhabitants and the belligerents remain under
the protection and the rule of the principles of the law of nations, as they result
from the usages established among civilized peoples, from the laws of humanity,
and the dictates of the public conscience.
— Laws and Customs of War on Land (Hague IV), 18 October 1907[4][5][7]
The Clause was introduced as a compromise wording for the dispute between
the Great Powers who considered francs-tireurs to be unlawful
combatants subject to execution on capture and smaller states who maintained
that they should be considered lawful combatants.[8][9]
The clause did not appear in the Geneva Conventions of 1949,[10] but was it
included in the additional protocols of 1977.[11] It is in article 1 paragraph 2
of Protocol I (which covers international conflicts),[12] and the fourth paragraph of
the preamble to Protocol II (which covers non-international conflicts).[13] The
11
wording in both is identical but slightly modified from the version used in the Hague
Convention of 1907:[14]
Recalling that, in cases not covered by the law in force, the human person remains
under the protection of the principles of humanity and the dictates of the public
conscience
In its commentary (Geneva 1987), the ICRC states that although the Martens
Clause is considered to be part of customary international law,[15] the
plenipotentiaries considered its inclusion appropriate because:
First, despite the considerable increase in the number of subjects covered by the
law of armed conflicts, and despite the detail of its codification, it is not possible for
any codification to be complete at any given moment; thus the Martens clause
prevents the assumption that anything which is not explicitly prohibited by the
relevant treaties is therefore permitted. Secondly, it should be seen as a dynamic
factor proclaiming the applicability of the principles mentioned regardless of
subsequent developments of types of situation or technology.[16]
Rupert Ticehurst, a Lecturer in Law, at King's College School of Law in London,
writes that:
The problem faced by humanitarian lawyers is that there is no accepted
interpretation of the Martens Clause. It is therefore subject to a variety of
interpretations, both narrow and expansive. At its most restricted, the Clause
serves as a reminder that customary international law continues to apply after the
adoption of a treaty norm.[17] A wider interpretation is that, as few international
treaties relating to the laws of armed conflict are ever complete, the Clause
provides that something which is not explicitly prohibited by a treaty is not ipso
facto permitted.[18] The widest interpretation is that conduct in armed conflicts is not
only judged according to treaties and custom but also to the principles of
international law referred to by the Clause.
The International Court of Justice (ICJ) in their advisory opinion on the Legality of
the Threat or Use of Nuclear Weapons issued on 8 July 1996, had to consider the
general laws of armed conflict before they could consider the specific laws relating
to nuclear weapons. Several different interpretations of this clause were presented
in oral and written submissions to the ICJ. Although the ICJ advisory opinion did
not provide a clear understanding of the Clause, several of submissions to the
court provided an insight into its meaning.[6]
The evidence that Ticehurst presents is that just as in 1899 there was a
disagreement between the great powers and the minor powers that lead to the
formulation of the Clause, so in 1996 a similar divergence of views exists between
the declared nuclear powers and the non nuclear powers with the nuclear powers
taking a narrow view of the Clause and the non nuclear powers taking a more
expansive view.[6]
Ticehurst concludes that:
... By refusing to ratify treaties or to consent to the development of corresponding
customary norms, the powerful military States can control the content of the laws
of armed conflict. Other States are helpless to prohibit certain technology
possessed by the powerful military States. ... the Martens Clause establishes an
objective means of determining natural law: the dictates of the public conscience.
This makes the laws of armed conflict much richer, and permits the participation
of all States in its development. The powerful military States have constantly
opposed the influence of natural law on the laws of armed conflict even though
these same States relied on natural law for the prosecutions at Nuremberg. The
ICJ in its Advisory Opinion did not clarify the extent to which the Martens Clause
permits notions of natural law to influence the development of the laws of armed
conflict. Consequently, its correct interpretation remains unclear. The Opinion has,
however, facilitated an important debate on this significant and frequently
overlooked clause of the laws of armed conflict.[6]
Judicial review[edit]
Several national and international courts have considered the Martens Clause
when making their judgements. In none of these cases however have the laws of
humanity or the dictates of the public conscience been recognised as new and
independent right. The clause served rather as general statement for humanitarian
principles as well as guideline to the understanding and interpretation of existing
rules of international law.
The Martens Clause was quoted in the following judicial rulings:
This list is incomplete; you can help by expanding it.
 Decision of the Supreme Court of Norway on 27 February 1946 in appeal
proceedings against Karl-Hans Hermann Klinge, Kriminalassistent of the
Gestapo (confirmation of the death sentence imposed by the first instance)[19]
12
 Decision of the US military tribunal III in Nuremberg on 10 February 1948 in
the case United States v. Krupp
 Decision of the Netherlands court of cassation on 12 January 1949 in the
procedure against SS-Obergruppenführer Hanns Rauter, general
commissioner for the safety organization in the Netherlands from 1940 to 1945
 Decision Brussels military courts (Conseil de guerre de Bruxelles) in the K.W..
case on 8 February 1950[20][21]
 Decision of the International Criminal Tribunal for the Former Yugoslavia on 8
March 1996 over the permission of the accusation during the process
against Milan Martić (case IT-95-11, decision IT-95-11-R61)
 Decision of the Constitutional Court of Colombia of 18 May 1995 for the
constitutionality of Protocol II Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International
Armed Conflicts. (decision C-225/95)
 The International Court of Justice advisory opinion on the Legality of the
Threat or Use of Nuclear Weapons issued on 8 July 1996
 Judgement of the German Federal Constitutional Court on 26 October 2004
for the compatibility of the expropriations in the former Soviet zone of
occupation between 1945 and 1949 with international law (decision BVerfG, 2
BvR 955/00 of 26.10.2004)
Rule 47. Attacks against Persons Hors de
Combat
Rule 47. Attacking persons who are recognized 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.
Summary
State practice establishes this rule as a norm of customary international law applicable in both
international and non-international armed conflicts.
International armed conflicts
This is a long-standing rule of customary international law already recognized in the Lieber Code,
the Brussels Declaration and the Oxford Manual.[1] The Hague Regulations provide that it is
especially forbidden “to kill or wound an enemy who, having laid down his arms, or having no
longer means of defence, has surrendered at discretion”.[2] Additional Protocol I prohibits
attacks against persons recognized as hors de combat and provides that such attacks constitute
grave breaches of the Protocol.[3] Under the Statute of the International Criminal Court, “killing
or wounding a combatant who, having laid down his arms or having no longer means of defence,
has surrendered at discretion” is a war crime in international armed conflicts.[4]
The prohibition on attacking persons recognized as hors de combat is set forth in numerous
military manuals.[5] Sweden’s IHL Manual identifies the prohibition on attacking persons
recognized as hors de combat in Article 41 of Additional Protocol I as a codification of customary
international law.[6]Violation of this rule is an offence under the legislation of many States.[7] It
is also referred to in military communiqués.[8] It is supported by official statements and reported
practice.[9] The prohibition on attacking persons hors de combat has been upheld in case-law
following the First and Second World Wars.[10]
Non-international armed conflicts
The rule is based on common Article 3 of the Geneva Conventions, which prohibits “violence to
life and person, in particular murder of all kinds” against persons placed hors de
combat.[11] This prohibition is repeated in Additional Protocol II, which adds that “it is prohibited
to order that there shall be no survivors”.[12] In addition, this rule is contained in other
instruments pertaining also to non-international armed conflicts.[13]
Military manuals which are applicable in or have been applied in non-international armed
conflicts prohibit attacks against persons recognized as hors de combat.[14] Such attacks are
also defined as a war crime in the legislation of a number of States.[15] The rule has been
applied in national case-law.[16] It is supported by official statements and other practice.[17]
Contrary practice collected by the Special Rapporteurs of the UN Commission on Human Rights
and by the ICRC has been condemned as a violation of the rule.[18] The ICRC has called for
respect for the prohibition of attacks on persons hors de combat in both international and non-
international armed conflicts.[19]
Specific categories of persons hors de combat
A person hors de combat is a person who is no longer participating in hostilities, by choice or
circumstance. Under customary international law, a person can be placed hors de combat in
three situations arising in both international and non-international armed conflicts:
13
(i) Anyone who is in the power of an adverse party. It is uncontested that a person who is in the
power of an adverse party is hors de combat. This rule is set forth in Additional Protocol I and is
implicit in common Article 3 of the Geneva Conventions and in Additional Protocol II.[20] It has
been confirmed in numerous military manuals.[21] Respect for and protection of persons who
are in the power of an adverse party is a cornerstone of international humanitarian law as
reflected in several provisions of the Geneva Conventions and Additional Protocols. Practice,
therefore, focuses rather on the treatment to be given to such persons (see in particular Chapters
32 and 37).
(ii) Anyone who is defenceless because of unconsciousness, shipwreck, wounds or
sickness. This category is based on the Hague Regulations, common Article 3 of the Geneva
Conventions and Additional Protocol I, which prohibit attacks on defenceless persons.[22] It is
found in numerous military manuals.[23] It is contained in the legislation of many States.[24] It
is also supported by case-law, official statements and other practice, such as instructions to
armed forces.[25] In addition, respect for and protection of the wounded, sick and shipwrecked
is a cornerstone of international humanitarian law applicable in both international and non-
international armed conflicts as reflected in several provisions of the Geneva Conventions and
their Additional Protocols. Practice, therefore, focuses rather on the treatment to be given to
such persons (see Chapter 34).
(iii) Anyone who clearly indicates an intention to surrender. This category is based on the Hague
Regulations, common Article 3 of the Geneva Conventions and Additional Protocol I.[26] It is
contained in numerous military manuals.[27] It is included in the national legislation of many
States.[28] It is also supported by official statements and other practice, such as instructions to
armed forces.[29] The general tenet that emerges from this practice is that a clear indication of
unconditional surrender renders a person hors de combat. In land warfare, a clear intention to
surrender is generally shown by laying down one’s weapons and raising one’s hands. Other
examples, such as emerging from one’s position displaying a white flag, are mentioned in many
military manuals.[30] There are specific examples of ways of showing an intent to surrender in
air and naval warfare.[31]
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.[32] 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.
Quarter under unusual circumstances of combat
The prohibition on attacking a person recognized 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.[33] This
is restated in several military manuals.[34] The US Field Manual similarly states that:
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 prisoners on
grounds of self-preservation, even in the case of airborne or commando operations.[35]
Israel’s Manual on the Laws of War and the UK Military Manual contain similar
statements.[36] Additional Protocol I and several military manuals require that all feasible
precautions be taken to ensure the safety of released prisoners.[37]
In the context of non-international armed conflicts, some armed opposition groups have raised
difficulties in providing for detention, but the duty to give quarter has not been challenged per
se.[38]
Practice recognizes that the duty to give quarter is to the benefit of every person taking a direct
part in hostilities, whether entitled to prisoner-of-war status or not. This means that mercenaries,
spies and saboteurs also have the right to receive quarter and cannot be summarily executed
when captured (see also Rules 107–108).
Loss of protection
According to Additional Protocol I, immunity from attack is conditional on refraining from any
hostile act or attempt to escape.[39] This is also set forth in several military manuals.[40] 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”.[41]The Convention contains other
specific rules applicable to the escape of prisoners of war.[42]
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.[43]
14

Declaration Renouncing the Use, in Time of
War, of Explosive Projectiles Under 400
Grammes Weight. Saint Petersburg, 29
November / 11 December 1868.
The Declaration of Saint Petersburg is the first formal agreement prohibiting the use of certain
weapons in war. It had its origin in the invention, in 1863, by Russian military authorities of a
bullet which exploded on contact with hard substance and whose primary object was to blow
up ammunition wagons. In 1867 the projectile was so modified as to explode on contact with a
soft substance. As such the bullet would have been an inhuman instrument of war, the
Russian Government, unwilling to use the bullet itself or to allow another country to take
advantage of it, suggested that the use of the bullet be prohibited by international agreement.
The Declaration to that effect adopted in 1868, which has the force of law, confirms the
customary rule according to which the use of arms, projectiles and material of a nature to
cause unnecessary suffering is prohibited. This rule was later on laid down in Article 23 (e) of
the Hague Regulations on land warfare of 1899 an 1907. The Declaration of Saint Petersburg
prompted the adoption of further declarations of a similar nature at the two Hague Peace
Conferences of 1899 and 1907. The Hague Declarations relating to the discharge of projectiles
and explosives from balloons, the use of asphyxiating gases and the use of expanding bullets
refer in their preambles to the Declaration of Saint Petersburg.
DECLARATION
On the proposition of the Imperial Cabinet of Russia, an International Military Commission
having assembled at St. Petersburg in order to examine the expediency of forbidding the use
of certain projectiles in time of war between civilized nations, and that Commission having by
common agreement fixed the technical limits at which the necessities of war ought to yield to
the requirements of humanity, the Undersigned are authorized by the orders of their
Governments to declare as follows:
Considering:
That the progress of civilization should have the effect of alleviating as much as possible the
calamities of war;
That the only legitimate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy;
That for this purpose it is sufficient to disable the greatest possible number of men;
That this object would be exceeded by the employment of arms which uselessly aggravate the
sufferings of disabled men, or render their death inevitable;
That the employment of such arms would, therefore, be contrary to the laws of humanity;
The Contracting Parties engage mutually to renounce, in case of war among themselves, the
employment by their military or naval troops of any projectile of a weight below 400 grammes,
which is either explosive or charged with fulminating or inflammable substances.
They will invite all the States which have not taken part in the deliberations of the International
Military Commission assembled at St. Petersburg by sending Delegates thereto, to accede to
the present engagement.
This engagement is compulsory only upon the Contracting or Acceding Parties thereto in case
of war between two or more of themselves; it is not applicable to non-Contracting Parties, or
Parties who shall not have acceded to it.
It will also cease to be compulsory from the moment when, in a war between Contracting or
Acceding Parties, a non-Contracting Party or a non-Acceding Party shall join one of the
belligerents.
The Contracting or Acceding Parties reserve to themselves to come hereafter to an
understanding whenever a precise proposition shall be drawn up in view of future
improvements which science may effect in the armament of troops, in order to maintain the
principles which they have established, and to conciliate the necessities of war with the laws of
humanity.
Done at St. Petersburg, 29 November (11 December) 1868.
(Here follow signatures)
15