Killings of Prisoners of War and Refusal of Quarter – Present and Past

Modern international humanitarian law (IHL) protects prisoners against attack or mistreatment from the moment they surrender or do something akin to surrender. Relevant provisions include Articles 40 and 41 of Additional Protocol I of 1977 (AP I). Regarding prescribed conduct, the two provisions partially overlap. Article 41 lists the conditions that trigger this protection.

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.

Article 40 broadens protection to orders, threats, and conduct noting, “It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.” This is referred to as “refusal of quarter.” Finally, Article 13(3) of the Third Geneva Convention prohibits reprisals against prisoners of war.

The aim of this short post is not to canvass the law relating to these rules. That can be read in a Commentary to AP I produced by the International Committee of the Red Cross. Rather it aims to highlight important regulations of military necessity in the context of reprisals and prisoner of war treatment through the Geneva tradition of IHL as well as a degree of its persistence in the Hague tradition.

Past

Although prohibited, refusals of quarter during armed conflict have not been unknown. Famous examples date back to the First and Second World Wars when the lifeboats of shipwrecked crews were sunk (see Rosas, The Legal Status Of Prisoners Of War. A Study In International Humanitarian Law Applicable In Armed Conflicts (1976)). The Kuraschow case provides a more recent example from Ukraine.

Earlier, in the 19th century, the protective regime developed slowly, while legal writings remained split on the legality of refusing quarter despite military necessity. Many, if not most, rules of the law of war were cast under a sort of resolutory condition owing to inability of a belligerent to follow applicable rules because of operational constraints, duress, or force majeure – a situation summed up under the ubiquitous and flexible concept of “military necessity.”

The main situation envisaged in the 19th century that gave rise to quibbling concerned a belligerent, having captured a great number of prisoners of war, that was unable to transport and to guard them due to lack of adequate means and finding that any attempt to transfer and intern the prisoners would jeopardize its own security. Whether the belligerent must then release them (after having taken off their personal weapons and possibly having unclothed them), or could it put the prisoners to death was a live question. Legally, the point turned on the question whether a “military necessity” exception might be applicable to excuse failure to treat prisoners according to established treatment rules.

Opinions were split. Most authors, discussing the issue explicitly admitted there was no general consensus in legal writings and that the point remained highly controversial. The dominant opinion was in favor of making exceptions to the protective rule.

Some authors went so far as to condone executions of prisoners of war within the confines of military necessity. For example, the Swiss scholar, J. C. Bluntschli, asserted, “The order to show no quarter can only be given as a reprisal or in cases of absolute necessity, and especially when it is impossible to take the prisoners away without compromising one’s own safety” (p. 303) (in original, “L’ordre de ne pas faire de quartier ne peut être donné qu’à titre de représailles ou en cas de nécessité absolue, et spécialement lorsqu’il est impossible d’emmener les prisonniers sans compromettre sa propre sûreté.”).

In the United States, Francis Lieber is generally lauded for his humanitarian patina. Yet, Article 60 of his famous instructions for the Government of Armies of the United States in the Field (1863) instructs, “… a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoners.” Along the same vein, the American author, Percy Borwell, quoted Westlake, “The admitted case in which it is not practicable [to grant quarter] is that which occurs during the continuance of fighting, when the achievement of victory would be hindered and even endangered by stopping to give quarter instead of cutting down the enemy and rushing on.” Others concluded similarly including Heffter (p. 295), Lueder (p. 437) (in German), and Risely (p. 125).

However, other authors argued that the military necessity exception could not be applied even in such constraining circumstances. The execution of prisoners would be odious and barbaric, inconsistent with the growing arm of the modern law of war and its principle of humanity. Calvo, in his 1896 work Le droit international théorique et pratique, 5th edition, quotes authors such as Riquelme, Vattel and Bello and then goes on to state in apodictic words, “For our part, we refuse to accept that war should stifle Christian sentiments and silence the voice of conscience. The unarmed, defeated, and imprisoned enemy becomes sacred to us as a human being; to establish as doctrine that one can take his life to save one’s own, to strive to find arguments to justify such a crime against humanity, is to set the world backward, to resurrect practices worthy of the savage tribes of Central Africa or the islands of Oceania” (p. 197) (in the original French: “Pour notre part, nous n’acceptons pas que la guerre étouffe les sentiments du chrétien et fasse taire la voix de la conscience. L’ennemi désarmé, vaincu, prisonnier, nous devient sacré comme homme; ériger en doctrine qu’on puisse attenter à sa vie pour ménager la sienne, s’évertuer à chercher des arguments pour justifier un pareil crime de lèse-humanité, c’est faire rétrograder le monde en arrière [sic], c’est ressusciter des pratiques dignes des tribus sauvages du centre de l’Afrique ou des îles de l’Océanie.”).

Similarly, Bonfils, in his 1901 Manuel de droit international public, 3rd edition observed, “Let us reject, with Calvo (§ 2144), Fiore (Code, art. 974), Pillet (op. cit., t. I, p. 199), etc., this profoundly inhumane doctrine. […] If the victor cannot keep and take captive his prisoners, he cannot kill them; he must release them” (p. 630) (in the French original: “Repoussons avec Calvo (§ 2144), Fiore (Code, art. 974), Pillet (op. cit., t. I, p. 199), etc., cette doctrine profondément inhumaine. […] Si le vainqueur ne peut garder et emmener en captivité ses prisonniers, il ne peut les occire; il doit les relâcher.”). Similar sentiment was expressed by Zorn in Das Kriegsrecht zu Lande of 1906 (p. 82). However, Zorn admitted execution as a possibility in the distinct case of reprisals (p. 84). For his part, Mérignhac writing in his 1912 work Traité de droit international public, Le droit de la guerre, denied this right even in case of reprisals (p. 160). And in 1892, Pillet, writing in Le droit de la guerre, emphasized the absence of real necessity in such cases and touted the principle of humanity (p. 199) (for similar arguments see also P. Fiore, Il diritto internazionale codificato, Turin, 1898, p. 450; and J. Laurentie, Les lois de la guerre, Paris, 1917, p. 32).

Meanwhile, some authors did not discuss the specific necessity situation mentioned above but stated clearly that in their view the prohibition to refuse quarter knew no exception whatsoever. For example, Acollas wrote, “[the law] proclaims that it is a crime to kill, that it is a crime to wound the surrendering enemy, and that this crime can only be aggravated if, under any circumstances, under any pretext whatsoever, the enemy is refused quarter” (p. 67) (in original French “Il [le Droit] proclame que c’est un crime de tuer, que c’en est un de blesser l’ennemi qui se rend et que ce crime ne peut que s’aggraver si, dans aucun cas, sous un prétexte quelconque, on refuse à l’ennemi de lui faire quartier.”).

Thus, the question of quarter was highly controversial in the 19th century. Indeed, most authors conceded only the relative strength of the refusal of quarter prohibition.

Concluding Thoughts

Today, the law of war community is so accustomed to the demise of the “military necessity” excuse in the context of rules on protected persons that it is difficult to believe that in the not-so-distant past, the justification was as available in the Hague tradition as it was in the Geneva branch of the law of war. However, a major evolution of the law of armed conflict of the 20th century was not merely the taming of the centrifugal forces relating to reprisals and military necessity in general, but even more so the almost complete expulsion of these notions from the Geneva tradition’s protective law. For reprisals, the point is often made; but the military necessity side remains more often shrouded by confusion.

From current treaty text it is clear that military necessity as a sort of “circumstance precluding wrongfulness,” has been eliminated from the Geneva tradition of IHL. Meanwhile, the Hague Law, the exception of military necessity still has a certain sphere of application. The rule on the destruction of private property codified in Article 23(g), of the 1907 Hague Regulations and Article 53 GC IV of 1949 is emblematic in this regard. The latter provision replicates the former for occupied territories, where hostilities may still occur. Similarly, reprisals have been completely ruled out in the context of protected persons to which the 1949 Geneva Conventions apply, as Articles 46/47/13(3)/33(3) of Geneva Conventions I, II, III and IV respectively show. Once more, the absolute prohibition is not replicated in the Hague Law, where reprisals continue to have some place. Thus, in the modern law there is some degree of divergence of Hague and Geneva law on issues of military necessity and reprisals, a split that did not exist to the same degree before World War II. A sort of mild “dualism” replaced a taste of mild “monism”.

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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC. Prof Kolb is also a member of the legal section of the Swiss military high command (IHL section).

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

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