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This arose around some comments on "Is it true that the US president can execute anyone without a trial?"

  • Under the traditional rules of war you are not allowed to simply kill all of your opponents but are supposed to take prisoners of war when possible

  • No. Legally Russian military has no right to kill or murder anyone. If a soldier receives an order to "kill" the enemy he legally should refuse to follow it. Orders only can be of the form like "push the enemy from the place A", "capture place B", "strike place C (say, command centre)". There can be order to strike enemy infantry, but not to kill enemy infantry - there is a difference. Everybody always has right to surrender. I know that Russian secret services recently assassinated some people abroad, such as terrorist Yandarbiev but my conviction it is illegal and a borrowing of US methods. Comments might be deleted soon

  1. Is there any international law, or convention (including Geneva) which compels any country participating in a war to take prisoners when a person fighting on the opposing side DOES NOT wish to surrender? (as opposed to simply killing everyone they can on opposing side as long as they don't try to surrender explicitly).

  2. Is there something in sovereign law of major countries (I'm specifically interested in USA, USSR-or-RussianFederation, and France) which compels their military to do so, independently of international law (e.g. a law which would make an order to kill all opposing fighters - instead of offering to surrender, and/or trying to capture as POW - be an illegal order)?

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user4012
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  • Related (but concerning people trying to surrender): http://politics.stackexchange.com/questions/1146/what-law-compels-countries-to-take-prisoners-who-wish-to-surrender – user4012 Mar 12 '13 at 15:15
  • Please note that I'm looking for actual wording from relevant legal documents, no simply opinions. – user4012 Mar 12 '13 at 15:17
  • If there were a law, it would have been violated by every country on a vast number of occasions. Any kind of surprise attack would be a violation, as would an artillery barrage or aerial bombardment. – DJClayworth Mar 13 '13 at 15:20
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    The answer to both questions is “no”. I'm not sure how you can even hypothetically arrest an ARMED combatant if he or she is NOT willing to surrender. As a US Legal Adviser H. Koh wrote: “The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.” – Yury Mar 17 '13 at 22:09
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    @Yury I think that would make an answer. – DJClayworth Mar 18 '13 at 15:37
  • Most soldiers do not wish to surrender when they have enough supplies, weapons and people. To make them to wish to surrender one has to capture them or make them out of ammunition. – Anixx Apr 10 '13 at 01:57
  • @Anixx - most medieval armies broke after only something like 10-20% casualties. – user4012 Apr 10 '13 at 03:34
  • @DVK "broke" in most cases meant that people were trying to flee rather than being captured. – Anixx Apr 10 '13 at 06:11
  • It is hard to understand your question. If a person is fighting on the opposing side, and is not incapacitated, has enough weapons and ammo, and does not wish to surrender, it is impossible to take such person as prisoner without making them out of ammo and/or ammunition. So what's the question? It is simply impossible to capture anyone who has weapons and resists. ========= Or is your question about people who had announced publicly that they do not wish to surrender? Had the opposing party the right to kill enemy combatants without taking prisoners if those combatants publicly announ – Anixx Apr 10 '13 at 02:03
  • The question is pretty unambigious. "NOT trying to surrender". As in, did NOT say "we surrender" and laid down weapons. – user4012 Apr 10 '13 at 02:16
  • @DVK in that case the first part of the answer apply: if somebody continues armed resistance, it is impossible to take them as prisoners even with all desire (because they will kill the guards, hehe). – Anixx Apr 10 '13 at 06:14
  • It is not impossible. I could run up to them disarm and grapple with them until they are no longer able to provide any meaningful resistance. This would put me at great risk, which I believe is the point of the question. I fail to see why this could not have been added to your original answer though. – SoylentGray Apr 10 '13 at 12:35
  • @Chad taking prisoners is usually easier than killing all enemies. In modern wars the number of prisoners greatly outnumbers those killed. Conversely, killing the enemies usually costs additional casualties so all armies prefer to offer (and agitate) the enemy to surrender rather than to fight to the end. – Anixx Apr 10 '13 at 19:59
  • As a veteran of 8 years, I can say with certitude that you are misstating how infantry can attack combatants. Your source is suspect. – Jeremy Holovacs Apr 23 '13 at 20:51

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There is no law which states that nations engaged in combat have to take prisoners who are not surrendering. Combatants who are not surrendering are still combatants and can be killed or injured accordingly.

If combatants refuse to lay down arms they are considered to be combatants under Article 3 referenced below.

Reference:http://www.icrc.org/applic/ihl/ihl.nsf/ART/380-600006?OpenDocument

Mistah Mix
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    I think you are right but this question really needs a reference to back up the claim. – SoylentGray Apr 09 '13 at 13:10
  • @Chad Since humans have existed people have been killing people; laws and convention alter that "initial state". To require a reference defining the original state of affairs seems tautological. – Jeremy Holovacs May 13 '13 at 17:36
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    @Chad you seem to be asking for a reference pertaining to the absence of a law. I think the burden of proof is on the person claiming there is such a law, and not the other way around. – Jeremy Holovacs May 13 '13 at 17:44
  • @JeremyHolovacs - If you can not reference a specific claim of fact then you should not use it in an answer. It is the Rules of this SE not anything I personally have. Take it to [meta]. – SoylentGray May 13 '13 at 18:39
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Since you are quoting my comments in the question, I will try to clarify what I meant and try to resolve your confusion.

Why an order to kill Mr. John Doe "the Enemy" issued to the military may be illegal?

Because Mr. Doe may decide to surrender. But upon approaching the opposing side he will be killed - because they have the order to kill him. But killing those who wishes to surrender is illegal. That's why the military usually issues orders to strike certain positions rather than killing somebody.

Now you can ask, whether an order issued not to the whole military but to say, air drone corps to kill Mr. Doe may also be illegal? Or why may be illegal having some government killing lists.

This is because Mr. Doe may retire from the opposing force, ceasing to be combatant. He can move to another, neutral or friendly country. But the US still has him in their killing list. An air strike upon the territory of a neutral country is evidently illegal. Similarly illegal to target a former combatant, who laid arms, a civilian.

That's why the military usually does not maintain list of people to be killed but rather targets enemy's command centers.

It seems that people get into the US killing list for life and there is no way to get out of the list.

Note that a person suspected in terrorism is not necessarily a combatant. If such person is not surrendering, there can be a lawful trial in absentia that can sentence the person to death. Extrajudical killing of such person based only on suspicion is evidently illegal both on friendly or enemy's soil.

Anixx
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    May I ask why you keep posting new answers instead of updating your old one? That's the third one, it's kinda hard not to notice. – yannis Apr 10 '13 at 22:46
  • @Yannis Rizos because it is completely different. – Anixx Apr 11 '13 at 03:19
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    @DJClayworth for what commentary? – Anixx Apr 11 '13 at 03:27
  • It should also be pointed out that to count as an 'enemy combatant' according to Geneva convention and other similar laws, a person has to be in some kind of uniform and clearly identifiable. – DJClayworth Apr 11 '13 at 03:29
  • @DJClayworth according the additional protocol the combatants may be not necessarily in uniform, but they should bear arms openly. – Anixx Apr 11 '13 at 03:32
  • Somebody who fights out of uniform and not bearing arms openly is a spy, which is punishable by death. – DJClayworth Apr 11 '13 at 03:34
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    @DJClayworth spy only exists on the enemy territory. Someboby on the own territory not bearing arms is a civilian. Even spy even if punished by death should be tried by a court after capture. – Anixx Apr 11 '13 at 03:37
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I already answered this in the previous question:

Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, (...)

(from Geneva convention)

This means that desire to surrender does not matter if you are already captured.

From additional protocol to this convention:

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.

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;

This actually means that anybody incapacitated should not be attacked.

Anixx
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    I believe the question is about combatants who are actively resisting, rather than those incapacitated. – SoylentGray Apr 09 '13 at 13:09
  • @Chad everybody is resisting until they are incapacitated or captured. – Anixx Apr 10 '13 at 01:55
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    Actually you could choose to throw down your weapon and surrender. This along with compliance with directions and orders given to you by the enemy would be the definition of surrendering. – SoylentGray Apr 10 '13 at 12:32