The legality of taking prisoners during combat is governed by international laws, primarily the Geneva Conventions and customary international humanitarian law. These rules set clear obligations regarding the treatment of enemy combatants who wish to surrender. Here’s a breakdown of the legal obligations and the practical challenges that can arise in combat:
Legal Obligations: Geneva Conventions
- The Duty to Accept Surrender:
- Under the Geneva Conventions, specifically the Third Geneva Convention (1949), enemy combatants who surrender must be taken as prisoners of war (POWs) and treated humanely. This obligation applies as soon as an enemy fighter indicates a clear intention to surrender.
- What Constitutes Surrender: For surrender to be legally recognized, it must be unambiguous. Typical indicators might include raising hands, discarding weapons, or displaying a white flag. Once an enemy clearly communicates a desire to surrender, they are considered “hors de combat” (out of combat), and targeting them would be considered a war crime.
- Prohibition Against Summary Execution:
- Executing or targeting individuals who have surrendered is a serious violation of the Geneva Conventions. The legal framework aims to protect combatants who are no longer a threat, emphasizing the humanitarian treatment of those captured.
Practical Challenges in Combat Scenarios
Despite these legal obligations, real-world situations can create ambiguities and challenges, particularly in intense and chaotic combat scenarios like close-quarters battle (CQB) or trench clearing:
- Split-Second Decision-Making:
- In the heat of battle, it can be extremely difficult for soldiers to distinguish between an enemy who is surrendering and one who might be feigning surrender as a ruse. The rapid pace of CQB or room-clearing operations leaves little time for careful judgment, leading to situations where a soldier might react to a perceived threat.
- Mistaken Responses: If a soldier is uncertain about whether an enemy is truly surrendering or preparing to attack, their immediate response may lean towards self-preservation, potentially leading to an unintended violation of the rules of war.
- Hostile Situations and Feigned Surrenders:
- The risk of perfidy (treachery), where an enemy pretends to surrender only to attack, further complicates the situation. The Geneva Conventions prohibit perfidy, and soldiers are not obligated to accept surrender if it clearly poses a direct threat to them or their unit.
- Example: If an enemy drops their weapon but remains in a position to potentially retrieve it or access another weapon, soldiers might interpret this as a threat rather than a genuine surrender, leading to defensive action.
- Logistical and Tactical Constraints:
- In some cases, accepting prisoners can create practical problems, such as when troops are advancing rapidly and lack the means to secure and transport captured enemies safely. However, this does not legally justify targeting surrendering combatants; it may instead result in temporarily disarming and leaving the surrendered personnel behind for follow-up forces, as mentioned in some historical practices.
- Submarines and Aircraft: There are specific contexts where accepting surrender is not feasible—such as submarines that cannot take on additional personnel without endangering their own crew. In such cases, the Geneva Conventions allow for some flexibility, provided that the enemy is not intentionally harmed after becoming hors de combat.
Real-World Scenarios: How These Issues Play Out
Example 1: Room Clearing in CQB
- In urban warfare, where units are clearing buildings room by room, soldiers may encounter enemies who attempt to surrender after a firefight has started. If a soldier is already under attack or perceives an immediate threat, their reaction may be defensive, resulting in the enemy being killed before the intent to surrender is fully understood.
- After the immediate danger has passed, any survivors found unarmed and showing clear signs of surrender must be treated as POWs and given medical care if needed.
Example 2: Trench Clearing
- When clearing a trench, soldiers often encounter enemy combatants at extremely close range. In such situations, it is possible for an enemy fighter to drop their weapon in an attempt to surrender. But if the attacking soldiers perceive any remaining threat, or if the situation is so chaotic that the surrender is not clearly communicated, the legal obligation to accept that surrender may be difficult to fulfill in real-time.
- However, if an enemy combatant is found alive and unarmed after the trench has been secured, they must be treated according to the rules for POWs.
Example 3: Airstrikes and Distant Engagements
- In situations where long-range artillery or airstrikes are used, such as bombing runs over an enemy position, it may be impossible for the attackers to accept a surrender due to distance and lack of communication. However, this does not grant a blanket permission to target those who have already made a surrender attempt visible to ground forces. Military planners are expected to cease attacks if surrender is clearly communicated and recognized through visible signals.
Conclusion: Legal Standard vs. Combat Realities
Legally, the rules of war require accepting surrender if it is unambiguous and feasible without risking the safety of the capturing force. Yet, the chaotic nature of combat, especially in close quarters or rapidly evolving situations, means that practical adherence to this principle can be extremely difficult. When mistakes are made due to the fog of war, they are often reviewed through investigations to determine if they were understandable errors under pressure or if they were willful violations of international law.
Thus, while the ideal is to respect and accept surrenders to ensure humane treatment of combatants, the reality of war means that mistakes do happen, sometimes leading to tragic outcomes. However, deliberate or systematic violations, like executing surrendered combatants because it’s more “convenient,” are clearly illegal and subject to prosecution under international law.