Practice Relating to Rule 46. Orders or Threats That No Quarter Will Be Given

It is prohibited to order that no prisoners will be taken, threaten an enemy that such an order will be given or conduct hostilities on the basis that no prisoners will be taken. Ambiguous orders, such as, “take that objective at any cost” should be avoided. 

It is prohibited to order that no prisoners will be taken, threaten an enemy that such an order will be given or conduct hostilities on the basis that no prisoners will be taken. Ambiguous orders, such as, “take that objective at any cost” should be avoided. 

7.7 It is prohibited to order that no prisoners will be taken, threaten an enemy that such an order will be given or conduct hostilities on the basis that no prisoners will be taken. Ambiguous orders, such as, “take that objective at any cost”, should be avoided.

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13.29 Provisions of the Hague Regulations 1907 are now recognised as part of customary law. Those regulations provide that the following acts are “especially forbidden”:

It is prohibited to order that there shall be no survivors, to threaten the adversary therewith or to conduct hostilities on such a basis. Such a prohibition has existed since the establishment … of Christian morality, through the doctrine of International Humanitarian Law, to the recent international diplomatic conferences. 

It is prohibited to soldiers in combat:

It is prohibited to deny quarter. In other words, it is unlawful to order, imply or encourage that no prisoners will be taken; to threaten an adversary party that such an order will be given; or to conduct hostilities on the basis that no prisoners will be taken. 

It is prohibited to deny quarter. In other words, it is unlawful to order, imply or encourage that no prisoners will be taken; to threaten an adverse party that such an order will be given; or to conduct hostilities on the basis that no prisoners will be taken. 

It is prohibited to deny quarter. In other words it is unlawful to order, imply or encourage that no prisoners are to be taken; to threaten an adverse party that such an order will be given; or to conduct hostilities on the basis that no prisoners will be taken. 

The “denial of quarter” is prohibited. In other words, it is unlawful to refuse to accept someone’s surrender or to order that no PWs [prisoners of war] or detainees will be taken. It is also illegal as well as operationally unsound to make threats to opposing forces that no PWs or detainees will be taken. 

Chapter 3. Protection

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I.2.4. Enemy hors de combat

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It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis. Consequently, a person who clearly expresses an intention to surrender, in whatever way, must not be made the object of attack.

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Chapter 4. Methods and means of warfare

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I.2.4. “Denial/no quarter”

It is prohibited not to give quarter. In other words, it is not lawful to order or to make understood that one will take no prisoners, to threaten an adversary with such an order, or to conduct hostilities on the basis of the principle that no prisoners will be taken.  

[T]he prohibition of the methodology that there shall be no mercy for those captured during the hostilities or threats that none shall be captured alive serve the need to restrict casualties to the lowest possible level dictated by military necessity, even under the harsh conditions of armed conflict, avoiding exaggerations and outrages with a view to achieve a humane dimension against the inherent barbaric nature of war. 

A war of annihilation without compromise leaves the other side no alternative but to fight to the bitter end. A soldier confronted with a cruel enemy will prefer to fight to the death rather than surrender to someone who will put him to death in any case. A country fighting a brutal and violent enemy will choose to invest all of its resources in the war effort, rather than putting a stop to it. In fact, the military interest tends towards getting the enemy to surrender and breaking it instead of war “to the bitter end”, even regardless of the morality thereof, since, from the military point of view, it is clearly more desirable for the enemy’s soldiers to surrender rather than continue fighting an enemy soldier against whom additional effort has to be invested in order if he is to be overcome. 

The individual is entitled to respect for his life, physical, mental and moral integrity and whatever is inseparable from his personality.

Examples:

0408. Quarter means that an opponent must be given the opportunity to surrender and thereby survive. It is thus forbidden to order that no one shall survive, to threaten an opponent with this, or to wage war on this basis.

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0709. Granting quarter (see also points 0408 ff.)

An adversary should be given the opportunity to surrender, even if there is doubt whether the person concerned is a combatant. Moreover, in the particular situation where combatants are taken as prisoners of war under battle conditions, when evacuation is not practicable, they should be released, and the necessary precautions taken to ensure their safety. One example might be a small reconnaissance unit which has ventured far into enemy territory. 

It is prohibited at all times to refuse quarter to the sick, wounded and shipwrecked no longer participating in the combat, or to persons who have laid down their arms and wish to surrender. It is also prohibited to give or carry out an order in this sense.  [emphasis in original]

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It is prohibited to order that no survivors will be taken, to threaten the enemy herewith or to conduct operations on this basis. ([1907] Hague [Regulations] article 23 and [1977] Additional Protocol I article [4]0.)

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- Targeting Prohibitions. It is prohibited to specifically target those possible targets which are specially protected under the [1949] Geneva Conventions and Additional Protocol I such as:

1.3.2. The following methods of warfare shall be prohibited: … ordering that there shall be no survivors, to threaten an adversary therewith.

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1.8.5. Serious violations of international humanitarian law directed against people include: … declaring that no quarter will be given. 

The Hague Regulations 1907 are now recognized as part of customary law. Those regulations provide that the following acts are “especially forbidden”:

a. Text. “Any person subject to this chapter who, with effective command or control over subordinate groups, declares, orders, or otherwise indicates to those groups that there shall be no survivors or surrender accepted, with the intent to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted, shall be punished as a military commission under this chapter may direct.”

b. Elements.

(1) The accused declared, ordered, or otherwise indicated that there shall be no survivors or surrender accepted;

(2) The accused thereby intended to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted;

(3) It was foreseeable that circumstances would be such that a practicable and reasonable ability to accept surrender would exist;

(4) The accused was in a position of effective command or control over the subordinate forces to which the declaration or order was directed; and

(5) The conduct took place in the context of and was associated with armed conflict.

c. Maximum punishment. Confinement for life. 

a. Text. “Any person subject to this chapter who, with effective command or control over subordinate groups, declares, orders, or otherwise indicates to those groups that there shall be no survivors or surrender accepted, with the intent to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted, shall be punished as a military commission under this chapter may direct.”

c. Maximum punishment. Confinement for life. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life. 

A person (the perpetrator) commits an offence if:

Penalty: Imprisonment for life. 

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

War crimes envisaged in the 1949 [Geneva] Conventions … and in the [1977 Additional Protocols I and II] … , as well as in Article 8(2)(f) of the [1998 ICC Statute], and listed below, … constitute crimes under international law and shall be punished in accordance with the provisions of the present title … :

Whoever, in violation of the rules of international law in time of war or armed conflict, orders that there be no surviving enemy soldiers in a fight, or whoever fights against the enemy on such basis,

shall be punished by imprisonment for a term of not less than ten years or long-term imprisonment. 

[The following are] considered as war crimes:

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B. Other serious violations of the laws and customs applicable in international armed conflicts, within the established framework of international law, namely, any of the following acts:

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D. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:

Whoever commits a war crime is punished with life imprisonment.

War crimes are:

The provisions of paragraphs 3 and 4 of the above article 139 do not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 

A member of the military or police shall be imprisoned for a period of no less than eight and no more than 15 years if he or she in the context of an international or non-international armed conflict:

A member of the military or the police shall be punished with deprivation of liberty of not less than six years and not more than twenty-five years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:

b) [O]ther serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

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d) …

Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

Articles 112–114 apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

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1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:

Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.

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1 The penalty shall be a custodial sentence of not less than three years for any person who, in the context of an armed conflict:

Ҥ 950v. Crimes triable by military commissions

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“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:

Ҥ 950t. Crimes triable by military commission

“The following offenses shall be triable by military commission under this chapter at any time without limitation:

26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.

26.3. The following are war crimes:

As interpreted by the accused in practice – viz. the right or even the obligation to kill an unarmed person in his power – the order was patently illegal. Executing or causing to be executed without prior due trial a suspect person or even a rebel fallen into the hands of the members of his battalion was obviously outside the competence of Major O., and such an execution was a manifest example of voluntary manslaughter. The illegal nature of the order thus interpreted was not in doubt and the accused had to refuse to carry it out … The act perpetrated by the accused constitutes not only murder within the meaning of Articles 43 and 44 of the Congolese Criminal Code and Articles 392 and 393 of the Belgian Criminal Code, but is also a flagrant violation of the laws and customs of war and the laws of humanity. 

No prisoners are to be taken from to-day onwards; all prisoners, wounded or not, are to be killed

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All the prisoners are to be massacred; the wounded, armed or not, are to be massacred; even men captured in large organised units are to be massacred. No enemy must remain alive behind us.

[He] acted in the mistaken idea that General Stenger, at the time of the discussion near the chapel, issued the order to shoot the wounded. He was not conscious of the illegality of such an order, and therefore considered that he might pass on the supposed order to his company, and indeed must do so.

So pronounced a misconception of the real facts seems only comprehensible in view of the mental condition of the accused … But this merely explains the error of the accused; it does not excuse it … Had he applied the attention which was to be expected from him, what was immediately clear to many of his men would not have escaped him, namely, that the indiscriminate killing of all wounded was a monstrous war measure, in no way to be justified. 

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

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On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

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The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

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… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

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To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

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Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

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To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

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According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

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Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

75. Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions.

76. The Government forces are also bound to respect customary IHL rules relating to the prohibited methods and means of warfare including … denial of quarter. 

The Commission considers that there is sufficient proof that United States soldiers … who survived the shooting down of the helicopter … but were wounded and defenceless, were executed in violation of international humanitarian law …

The Commission has likewise found no evidence that the executions were ordered by higher levels of command, or that they were carried out in accordance with an ERP [Ejército Revolucionario del Pueblo] or FMLN policy of killing prisoners. FMLN acknowledged the criminal nature of the incident and detained and tried the accused. 

Any order of “liquidation” is prohibited, whether it concerns commandos, political or any other kind of commissars, irregular troops or so-called irregular troops, saboteurs, parachutists, mercenaries or persons to be considered as mercenaries, or other cases. 

The following … are prohibited by applicable international law rules:

Applicable international law rules prohibit the following kinds of practices …