Practice Relating to Rule 47. Attacks against Persons Hors de Combat
Sweden’s IHL Manual (1991) considers that the safeguard of an enemy hors de combat
as contained in Article 41 of the 1977 Additional Protocol I is part of customary international law.
The manual states: “Article 40 of Additional Protocol I treats quarter – an archaic concept which is equivalent to showing mercy to an enemy who has been placed hors de combat.”
The manual adds:
Persons hors de combat may not be attacked, but shall enjoy the protection of international humanitarian law provided they abstain from any hostile act and do not attempt to escape.
In practice it can often be very hard to determine when this situation has arisen. If it is established that a person is hors de combat, he may not be subjected to attack, but he is not protected against the secondary effects of an attack on nearby objectives. It should also be noted that the mere presence of persons hors de combat does not imply that the place/object where they happen to be shall receive immunity.
Sweden’s IHL Manual (1991) notes:
The [1907 Hague Regulations] and [the 1949] Geneva Conventions include rules intended to afford protection to combatants in situations where they have laid down their arms or are no longer capable of defending themselves … or where combatants have become sick, are wounded, shipwrecked or captured. These fundamental rules have not always been applied in combat situations, and for this reason it has been considered necessary to reaffirm certain of the older provisions to assert their fundamental importance …
Personnel attempting to save themselves from a sinking vessel shall according to international humanitarian law be considered as distressed, and may not be attacked.
Under Sweden’s Penal Code (1962), as amended in 1998, “attacks … on persons who are injured or disabled” are “crimes against international law”.