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

  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 wishes to surrender? (as opposed to simply killing people who try to surrender to be taken prisoner?)

  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 NOT take a surrendering fighter as POW and kill him instead be an illegal order).

  • Related: But concerning people who are NOT trying to surrender: politics.stackexchange.com/questions/1147/… – 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 15:16
  • And the downvote is for? – user4012 Mar 12 '13 at 18:14
  • I didn't downvote, but your selection of major countries seems arbitrary. What about China, India, Indonesia, Brazil? – gerrit Mar 13 '13 at 12:43
  • @gerrit - Not arbitrary at all. USA/USSR because they were explicitly discussed in the comment thread which sprung this question. France because it's the main war-fighting player right now (Mali, Libya) and I wanted a sample that wasn't the Big Two. – user4012 Mar 13 '13 at 13:21
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Geneva convention of 1949 states that:

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, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

It seems that any such person under enemy's power has the right to be treated as a POW. On the other hand, people who are not organized, and do not "have a distinct sign" obviously could be treated as common criminals, i.e. not recognized as POWs.

It should be noted that this article only has force on the territory under control of the power under consideration.

A newer protocol of 1977 to the Geneva convention expands on this:

Art 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.

A definition of a combatant is also clarified:

Art 44. Combatants and prisoners of war

  1. Any combatant, as defined in Article 43, who falls into the power of an adverse Party shall be a prisoner of war.

  2. While all combatants are obliged to comply with the rules of international law applicable in armed conflict, violations of these rules shall not deprive a combatant of his right to be a combatant or, if he falls into the power of an adverse Party, of his right to be a prisoner of war, except as provided in paragraphs 3 and 4.

  3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

This means that a signatory to this convention has no right to just kill members of organized resistance groups who fell under their power. On the other hand, people who are suspected in terrorist activity but not belonging to the combatants are subject to civil laws installed on an occupied territory by the occupying power. They should follow article 43 of the Hague Convention of 1907:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

The legal power of these international conventions is enforced in Russian Federation by the article 236 of the Criminal code "Using prohibited means and methods of waging war" with the penalty up to 20 years in prison.

  • I don't see how the quote from 1949 has anything to do with what I asked? But 1977 is precisely what I was asking about. +1 – user4012 Mar 14 '13 at 14:54
  • @DVK the 1949 convention is still in force, it just was amended. One also should check which powers have each of these documents ratified. – Anixx Mar 14 '13 at 16:01
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This article by the Guardian discusses an incident where an American Apache killed Iraqi insurgents that tried to surrender. The fact that they needed clearance by a lawyer indicates that there is at least some legislation on surrendering and having to take the surrenderers (surrenderees?) prisoner rather than executing them.

It is, apparently, non-trivial:

One of Britain's foremost experts on the subject, Professor Sir Adam Roberts, cast doubt on the legal advice given to the Crazyhorse 18 crew. "Surrender is not always a simple matter," Roberts, emeritus professor of international relations at Oxford University and joint editor of Documents on the Laws of War, told the Guardian. But the reasoning given by the US military lawyer was "dogmatic and wrong"

This page at howstuffworks has a relevant mention, and links to the Fourth Hague Convention (1907).

Many of the laws governing battle are fairly obvious: It is illegal to misuse a white flag, a symbol of surrender or truce (Hague IV); it is illegal to kill or injure a person who has surrendered; it is illegal to attack a defenseless person or place; it is illegal to attack a building that is being used as a hospital. Some of the rules, however, are less patent.

Indeed, Hague Convention IV clears up the issue.

In addition to the prohibitions provided by special Conventions, 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;

You can find the article here: Section II (HOSTILITIES), Chapter I, Article 23

  • Does stating "I surrender" constitute enough of surrendering, or does the surrender need to be formally accepted for Article 23 to take effect? – user4012 Mar 13 '13 at 20:46
  • That is an interesting point - the article by the Guardian indicates that this could be a bit of a gray area. Apparently, in this case lawyers concluded that surrendering to an aircraft is impossible. I can't seem to find conclusive sources just yet. – Joost Mar 13 '13 at 22:18
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    I wonder if Falujah would constitute a precedent for dispiting this whole notion in court (when there were several incidents of US troops were shot and killed and blown up by people who were pretending to surrender). – user4012 Mar 14 '13 at 0:50
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    @DVK Fallujah wouldn't be the first time - Japanese troops apparently pretended to surrender in WWII. – Andrew Grimm Mar 15 '13 at 9:22
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    @Joost according the Geneva convention cited in my answer, a person who showed intention to surrender should not be attacked, whether of not their surrender accepted. – Anixx Oct 5 '13 at 10:58

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