Hors De Combat: Clarifying the U.S. Law of War Manual

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| Apr 5, 2024

Hors de combat

The U.S. Army Judge Advocate General’s Legal Center and School instructs on international protections for the wounded and sick, one of the many aspects of the Geneva Conventions emphasized to both seasoned and new military lawyers. One focus of instruction is to determine when a wounded soldier ought to be recognized as hors de combat (“out of the fight”) and therefore, can no longer be made the object of attack. To that end, we expose judge advocates to the First Geneva Convention (GC I), Additional Protocol I to the Geneva Conventions (AP I), and the U.S. Department of Defense (DoD) Law of War Manual. Within the Law of War Manual, judge advocates review a section on hors de combat which observes, “In order to receive protection as hors de combat, the person must be wholly disabled from fighting” (§ 5.9.4).

Following this instruction, we provide military lawyers with the following facts.

An infantry soldier is advancing on an objective when an enemy bullet hits the soldier’s thigh. The soldier drops their weapon, reaches into a first aid kit to dress their wounds, starts screaming for a medic, and yells, “I’m going to die!!”

Is this soldier out of the fight?

Within moments, without fail, the vocal majority declares the individual is not hors de combat and may be attacked. The usual reason given for this assessment is the close proximity of the gun and the perceived ability of the wounded soldier to reach for it, though there are no facts suggesting they will, or that they are feigning the wounds perfidiously. When asked about the wounded soldier’s nationality, students typically place themselves in the position of the shooter and not the wounded soldier, declaring that they would continue to fire upon the enemy soldier.

Curiously, when presented with the same facts, but with a U.S. solider substituted into the fact pattern as wounded, the majority finds that the soldier is hors de combat. The usual justification is that the soldier is wounded, no longer has a weapon, and is dressing their wounds. Therefore, the soldier is out of the fight. While many factors may explain the disparity of results, one might reasonably conclude that the U.S. Manual’s test is at least partly to blame.

This post aims to clarify when a person is recognized as hors de combat due to wounds or sickness. I propose the U.S. DoD Law of War Working Group should replace the language, “wholly disabled from fighting,” with language from AP I, Article 41(2)(c) in a future update of the Law of War Manual. I further propose that the Manual should provide examples to establish context and improve clarity.

Defining the “Wounded” and Hors de Combat

The text of neither the 1949 Geneva nor 1907 Hague Conventions explicitly defines whether a person is “wounded and sick.” For its part, an International Committee of the Red Cross (ICRC) Commentary estimates it to be a “matter of common sense and good faith.” The Commentary claims that a “combatant must take into account all the information reasonably available at the time before making a determination of whether a person is wounded or sick.” The Commentary recognizes that the determination of whether someone is wounded is difficult in practice, especially during combat. Under the hors de combat standard, a combatant is recognized as wounded if they are incapacitated by their wounds to the extent they are unable to defend themselves. This hors de combat standard is based chiefly on Article 41 of AP I.

AP I, Article 41 recognizes specific circumstances in which a person may be recognized as hors de combat. Itindicates that a member of an armed force that “has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore incapable of defending himself . . . .” is hors de combat. The article acknowledges that a person may lose their status as hors de combat if they engage in a hostile act or attempt to escape.

The ICRC’s Commentary to AP I provides two further considerations. First, it is not enough to be wounded or partially handicapped to be considered hors de combat. Rather, the person must be wounded and incapable of defending themselves. Second, the passage refers to language from the Hague Regulations which prohibit the killing or wounding of enemies when they no longer have “a means of defence.” The Commentary highlights an important point that “incapable of defending oneself” may be a physical or practical matter assuming the person in question refrains from hostile acts.

The United States has signed but has not ratified AP I. Nonetheless it considers portions of AP I as reflective of customary international law. In particular, a U.S. Joint Chief of Staff review of AP I indicated that Article 41 was acceptable as a restatement of law and the DoD has substantially replicated the principle, if not the precise language of hors de combat in the Law of War Manual.

The Law of War Manual and Hors de Combat

The Manual provides the following under the title, “Persons Rendered Unconscious or Otherwise Incapacitated by Wounds, Sickness, or Shipwreck.”

[P]ersons who have been incapacitated by wounds, sickness, or shipwreck are in a helpless state, and it would be dishonorable and inhumane to make them the object of attack. In order to receive protection as hors de combat, the person must be wholly disabled from fighting. On the other hand, many combatants suffer from wounds and sickness, but nonetheless continue to fight and would not be protected.

In many cases, the circumstances of combat may make it difficult to distinguish between persons who have been incapacitated by wounds, sickness, or shipwreck and those who continue to fight. If possible, those seeking protection as wounded, sick, or shipwrecked, should make their condition clear (§5.9.4, emphasis added).

The Manual does not provide a definition for or elaborate on the term “wholly disabled.” It cross-references the U.S. 1863 Lieber Code. However, that instrument also does not define the term. Meanwhile, the body of the Manual identifies AP I, Article 41 as the definition of hors de combat, but does not include the exact language in the body of the section on wounds and only refers to AP I, Article 41(2)(c) in a footnote as worthy of consideration (§ 5.9.4, n. 331).

Thus it is unclear how far the “wholly disabled from fighting” standard logically extends. The sentence that follows that passage further confuses practitioners because it indicates that persons may suffer a wound but continue to fight so they are not hors de combat. Although this is a legally accurate statement because it follows the “wholly disabled from fighting” language, it suggests that hors de combat status involves analysis whether the wounded can fight or not fight without consideration for what “fight” can mean.

It could mean that an individual that is wounded by a gunshot but still has the physical capability to throw a punch may never be hors de combat. Another interpretation might consider that a wounded enemy who is physically capable of firing a weapon but is not indicating any intent to do so, or similarly has the mobility to possibly reach for a weapon but has not moved in its direction, is not hors de combat. This is not an accurate interpretation of the standard but there is no clarification provided to dispel such narrow interpretations. Even if practitioners do not resort to the broadest interpretation there is still room for misinterpretation and therefore misapplication.

To be clear, a person that still has the physical capability or is sufficiently mobile to grab a weapon may be hors de combat. However, the enemy that does reach for the weapon, suggesting hostile intent or engages in a hostile act is not hors de combat. I am not suggesting that this determination is simple, especially under combat conditions. Still, there is a real danger that during combat, no one will be protected as hors de combat if the standard test remains so ambiguous that it can be applied to get two different answers on the same facts.

“Wholly Disabled from Fighting” Versus “Incapable of Defending Himself”

As an alternative, the Manual might remove the “wholly disabled from fighting” sentence. This wording is unnecessary considering its inclusion is based chiefly on historical context. The current state of the law is better reflected in AP I, Article 41 rather than the Lieber Code. The sentence should therefore be replaced with the following proposed language mirroring Article 41: “In order to receive protection as hors de combat, the person must be otherwise incapacitated by wounds or sickness, and as a consequence is incapable of defending himself; provided that in any of these cases they abstain from any hostile act and do not attempt to escape.” This foundation satisfies the spirit and intent of the law to protect defenseless combatants from being made the object of attack.

In addition to incorporating Article 41 into the body of the text, some guideposts should be included to address the “incapable of defending oneself” standard. It must be clear that the wound is the cause of the incapability, but the effect can be manifested in a variety of ways, including:

– Paralysis or the loss of body parts, including limbs, which make it impossible for the enemy to defend themselves;

– Wound(s) of varying severity which become the soldier’s center of attention;

– Clearly severe wounds such as a sucking chest wound or a head shot;

– When an enemy drops or abandons their weapon(s) because they are wounded, making them practically unable to defend themselves, when you can see they are holding their wound, or their hands are otherwise visible.

Within the guideposts, factors that suggest someone is still in the fight include:

– Whether the wound is visible and whether you observed the enemy being attacked;

– The enemy is wounded but still holding a weapon;

– Both hands of the enemy are not visible; for example, the enemy is lying with their back facing you, or they have their hand inside their shirt, or it is otherwise covered;

– The wounded armed or unarmed enemy is spotting or otherwise directing movement.

The Law of War Manual should also reiterate to practitioners that judgments must be applied with common sense and good faith; just as when distinguishing between civilians’ and combatants’ actions. The determination must be reasonable under the circumstances (§5.5). Such determinations must concede that in combat it is difficult to distinguish between fighters and those that are hors de combat (§5.9.4). However, this does not absolve combatants from the responsibility of doing so. Although the Manual suggests that wounded combatants seeking hors de combat status should make their condition clear if possible, those that are clearly wounded should be treated presumptively as hors de combat. This would be similar to the practice of presuming that civilians are protected until they directly participate in hostilities which results in loss of protection (§5.4.3.2).

Application to the Facts

Using AP I and the factors presented, the wounded soldier in the fact pattern would be considered hors de combat. The soldier is visibly wounded and drops their weapon. At this point, the soldier is practically incapable of defending themselves as they dropped the weapon. An approaching enemy soldier can see that they have no weapon and both their hands are visible and used to dress wounds. The wounded soldier’s attention reasonably appears centered on the wound rather than the approaching enemy soldier. The wounded soldier may be able to retrieve their dropped weapon, but their actions, as presented, do not suggest they will do so. If the wounded soldier reaches for the weapon, then they are no longer refraining from a hostile act and would be targetable. The wounded soldier is not spotting or otherwise directing movement. Based on the totality of the facts, the wounded soldier, as long as they refrain from hostile acts or attempts to escape, should be treated as hors de combat and should not be attacked.

Conclusion

The language “wholly disabled from fighting” within the Law of War Manual has created unnecessary confusion by creating a standard that admits an overly narrow interpretation. The language in the Manual should be changed to the hors de combat standard under AP I, Article 41, which provides clarity and commentary from other sources. In addition, providing factors to consider and the standard by which a combatant’s actions are reviewed gives practitioners a better idea of what the extent of “incapable to defend oneself” means. These would supply practitioners and combatants with the information they need to feel secure in their decisions during combat while at the same time preserving an important protection.

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Major Adam S. Reitz is an active duty Air Force judge advocate currently assigned as an Associate Professor of National Security Law at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

 

 

 

 

Photo credit: Cpl Danny Houghton RLC/UK Ministry of Defence