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.
Practice

Volume II, Chapter 15, Section B.

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:
(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
Article 41 - Safeguard of an enemy hors de combat

1. A person who is recognized or who, in the circumstances, should be recognized

to be ' hors de combat ' shall not be made the object of attack.

2. A person is ' hors de combat ' if:

(a) he is in the power of an adverse Party;

(b) he clearly expresses an intention to surrender; or

(c) he has been rendered unconscious or is otherwise incapacitated by wounds or

sickness, and therefore is incapable of defending himself;

provided that in any of these cases he abstains from any hostile act and does not
attempt to escape.

3. When persons entitled to protection as prisoners of war have fallen into the
power of an adverse Party under unusual conditions of combat which prevent their
evacuation as provided for in Part III, Section I, of the Third Convention, they shall
be released and all feasible precautions shall be taken to ensure their safety.