“Attacking persons who are hors de combat is prohibited”. Justify (For your convenience Hors de combat signifies someone who is defenseless, has intention to surrender in armed conflicts).
Introduction:
Hors De Combat means Out of action due to injury or damage. It means outside of combat. A civilian or a soldier who has relinquished or been extricated from combat status.
Brief History:
A term of military law and of international law referring to a soldier who have surrendered, or who has been so wounded as to not constitute a threat.
The status of hors de combat engages several legal responsibilities towards that solder such as 1977 amendments to the Geneva Convention On the Treatment of Prisoners of War (Protocol I)
Protocol I to Geneva Conventions:
In addition to personnel, hors de combat may refer to anything out of action or disabled. Protocol I to the Geneva Conventions defines:
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 person who is recognized or who, in the circumstances, should be recognized to be hors de combat should not be made the object of attack.
A person is hors de combat if: he is in the power of an adverse Party; he clearly expresses an intention to surrender; or he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself.
A combatant is hors de combat (out of combat) if that person: is in the power of an adverse party; clearly expresses an intention to surrender; or has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable of self defense, provided that in any of these cases the individual abstains from any hostile act and does not attempt to escape.
A combatant who is recognized or who, in the circumstances, should be recognized to be hors de combat should not be attacked.
An Argument for Formalizing the Commencement of Hostilities:
Criminal Law and jus ad bellum follow a parallel historical development. Both begin with a default that all violence is prohibited,[1] but then grant limited exceptions when it’s allowed. Therefore it’s appropriate for scholars and judges to look to the wealth of criminal law jurisprudence in interpret and develop jus ad bellum law. Jusin Bello, however, developed historically in an almost opposite pattern than criminal law. Historically in the realm of war, all violence was authorized and humanitarian law, first by custom and then as positive norms, developed as limitations to this blanket authorization. Although criminal law and join bello/humanitarian law use the same or similar terms, the meaning shave important differences (e.g. proportionality and self?defense). Therefore, it’s problematic to apply the lessons from criminal law jurisprudence to battlefield situations. To further complicate matters, a single act can be appropriately judged as punishable under a domestic criminal law and authorized and possibly heroic under humanitarian law. Consider the captured soldier. Under humanitarian law this individual is hors de combat and not eligible to engage in privileged belligerency for the duration of their capture. If they kill a military prison guard in order to affect earthier escape, they can be prosecuted for murder under the domestic criminal law of the capturing state. However, if they are successful in their escape and return to friendly lines, they are not viewed as a war criminal, or any manner of criminal. Given these two findings, the analysis of targeted killing should focus on the existence of an armed conflict. If the legal paradigm of war/armed conflicts going to continue, we need to develop a brighter line rule towards determining its existence. Even if this testis met, however, both legal paradigms may apply to the factual situation and yet their respective jurisprudence would not overlap.[2] For example, if a civilian engaged in the targeted killing of an individual and the manner of this targeted killing did not violate join bello (i.e. engaging a lawful target and lawful method of engagement), that civilian may be punishable under a domestic civilian criminal system (e.g. a intentional killing of another without legal justification or excuse), but not be punishable under the laws of war nor international law. (I do not agree with a concept of “murdering violation to the laws of war” as an international war crime but rather (as my colleague John Dehn has argued) that this domestic law applied extra?territorially).
Sports doping in the adolescent: the Faustian conundrum of Hors de Combat:
The drive toward success in sports and the need for a cosmetically acceptable appearance have driven many adolescents to take a wide variety of so-called doping substances. The consumption of these chemicals in the hope and hype of improved sports performance, fueled by the easing of government restrictions on their proof of safety and efficacy, has resulted in an explosion of so-called ergogenic products available to our youth. Agents that have been used include anabolic steroids, anabolic-like agents, designer steroids, protein and amino acid supplements, minerals, antioxidants, stimulants, blood doping, erythropoietin, beta-blockers, and others. The use of these agents has considerable potential to cause physical and psychological damage. Use and misuse of drugs in this sports doping process should be discouraged. [3]This discussion reviews some of the agents that are currently being used. Clinicians providing sports medicine care to youth, whether through anticipatory guidance or direct sports medicine management, should educate their young patients about the hype and hyperbole of these products that may keep them out instead of in the game at considerable financial cost to the unwary consumer.
Rules to be followed with Hors De Combat:
(a) In accordance with the basic principle of distinction, attacks must be confined to lawful targets.
(b) Lawful targets are:
i. Combatants;
ii. Military objectives (as defined in Rules 1 (y) and 22);
iii. Civilians directly participating in hostilities (see section F of this Manual).
Attacks directed against civilians or civilian objects are prohibited.
(a) In case of doubt as to whether a person is a civilian, that person shall be considered a civilian.
(b) In case of doubt as to whether an object which is ordinarily dedicated to civilian purposes is being used for military purposes, it may only be attacked if, based on all the information reasonably available to the commander at the time, there are reasonable grounds to believe that it has become and remains a military objective.
(a) Indiscriminate attacks are prohibited.
(b) Indiscriminate attacks are those that cannot be or are not directed against lawful targets (as defined in Rule 10 (b)) or the effects of which cannot be limited as required by the law of international armed conflict, and which therefore are of a nature to strike lawful targets and civilians or civilian objects without distinction.
(c) Attacks must not treat as a single lawful target a number of clearly separated and distinct lawful targets located in a city, town, village or area containing a similar concentration of civilians or civilian objects.
An attack that may be expected to cause collateral damage, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.
(a) It is prohibited to order that there shall be no survivors in combat operations, to threaten an adversary therewith, or to conduct hostilities on that basis.
b) Persons who are hors de combat – either because they have clearly expressed an intention to surrender or as a result of sickness, wounds or shipwreck – must not be attacked, provided that they abstain from any hostile act and no attempt is made to evade capture.
(a) At all times, and particularly after an engagement, Belligerent Parties must, without delay, take all possible measures to search for and collect the wounded, sick and shipwrecked, to protect them against pillage and ill-treatment, and to search for the dead and prevent their being despoiled.
(b) The wounded, sick and shipwrecked must receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. No distinction may be made among them founded on any grounds other than medical ones.
The fundamental principle is that, in any armed conflict, the right of the Belligerent Parties to choose methods or means of warfare is not unlimited.
Civilians and Persons Hors de Combat:
The four Geneva Conventions of 1949 established the principle of international humanitarian law that a distinction should be made between combatants and civilians, who take no active part in hostilities. This customary rule of non-combatant immunity is also codified in the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1). Article 51 contains specific rules for the protection of civilians. Civilians shall enjoy general and specific protection from military operations and indiscriminate attacks. The provisions of Protocol I, relating to civilian protection, are of great significance because they establish concrete rules; non-combatant immunity is no longer an abstract formulation.
The Common Article 3 of the Third and Fourth Geneva Conventions of 1949, relative to the treatment of Prisoners of War and the Protection of Civilian Persons in Times of War, and customary law also in international conflicts, provides that “…persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.” The same article prohibits violence to life and person, particularly murder, cruel treatment or torture, humiliating and degrading treatment.
Attacking persons who are hors de combat is prohibited:
Enemy soldiers may reach the point where they would rather surrender than fight. They may signal to you by waving a white flag, by crawling from their positions with arms raised, or by yelling at you to stop firing so that they can give up. The way they signal their desire to surrender may vary, but you must allow them to give up once you receive the signal. It is illegal to fire on enemy soldiers who have thrown down their weapons and offered to surrender
Combatants cease to be subject to attack when they have individually laid down their arms to surrender … or when the unit in which they are serving or embarked has surrendered … However, the law of armed conflict does not precisely define when surrender takes effect or how it may be accomplished in practical terms. Surrender involves an offer by the surrendering party (a unit or individual combatant) and an ability to accept on the part of the opponent. The latter may not refuse an offer of surrender when communicated, but that communication must be made at a time when it can be received and properly acted upon – an attempt to surrender in the midst of a hard-fought battle is neither easily communicated nor received. The issue is one of reasonableness.
The following acts are representative war crimes:
1. Offenses against the sick and wounded, including killing, wounding, or mistreating enemy forces disabled by sickness or wounds
2. Offenses against combatants who have laid down their arms and surrendered
3. Offenses against the survivors of ships and aircraft lost at sea, including killing, wounding, or mistreating the shipwrecked; and failing to provide for the safety of survivors as military circumstances permit.
Certain rights have been considered so important that they are non-dirigible. In the three conventions there exist four common non-derivable rights. These are the right to life, the right to be free from torture and other inhumane or degrading treatment or punishment, the right to be free from slavery or servitude and the right to be free from retroactive application of penal laws. These rights are also known as peremptory norms of international law or jus cogens norms.
The evolution of international law related to the protection of war victims and to the conduct of war has been strongly affected by the development of human rights protection after the Second World War. The adoption of important international instruments in the field of human rights contributed to affirm the idea that everyone is entitled to the enjoyment of human rights, whether in times of peace or war[4]The four Geneva Conventions of 1949 established the principle of international humanitarian law that a distinction should be made between combatants and civilians, who take no active part in hostilities. This customary rule of non-combatant immunity is also codified in the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)
The law of war obligates a party to a conflict to accept the surrender of enemy personnel and thereafter treat them in accordance with the provisions of the 1949 Geneva Conventions for the Protection of War Victims.
However, there is a gap in the law of war in defining precisely when surrender takes effect or how it may be accomplished in practical terms. Surrender involves an offer by the surrendering party (a unit or an individual soldier) and an ability to accept on the part of his opponent.
Conclusion:
Hors De Combats describes combatants who have been captured or wounded or shipwrecked or sick or who have had laid down or surrendered and thus are in no longer ready to fight. Combatants are all members of the armed forces of party to the conflict except medical or religion personnel. The law of war permits the attack of enemy combatants and enemy equipment at any time, wherever located, whether advancing, retreating or standing still. Retreat does not prevent further attack. In the case at hand, neither the composition, neither degree of unit cohesiveness, nor intent of the Iraqi military forces engaged was known at the time of the attack. At no time did any element within the formation offer to surrender. CENTCOM [Central Command] was under no law of war obligation to offer the forces an opportunity to surrender before the attack
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