Practice Relating to Rule 47. Attacks against Persons Hors de Combat
Section B. Specific categories of persons hors de combat
Switzerland’s Basic Military Manual (1987) provides: “It is prohibited to kill or wound an enemy who, having laid down his arms or having no longer means of defence, has surrendered.” Furthermore, “a person who surrenders must clearly indicate his intention by his behaviour; he must no longer attempt to fight or escape”.
The manual adds: “The life of an individual who surrenders must be spared. During the Second World War, and subsequent conflicts, this rule has been frequently violated.”
The manual further provides that it is prohibited to finish off or exterminate the wounded and sick.
The manual also notes that “prisoners of war are protected persons” and that “captivity starts as soon as a member of the armed forces falls into enemy hands”.
In addition, according to the manual, “to finish off the wounded”, “to machine-gun the shipwrecked” and “to kill or injure an enemy who is surrendering” constitute war crimes under the manual.
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states: “I spare persons that surrender or are hors de combat
The Aide-Memoire also states with regard to the white flag:
- The White Flag clearly indicates willingness to negotiate, sometimes even willingness to surrender;
- Respect bearers of the White Flag. They are not allowed to be attacked.
Prohibited is/are …
- Attacks against bearers of the White Flag[.]
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
12. The principle of distinction
159 Hostilities must be directed exclusively against combatants and military objectives. …
3 Protected persons are persons who are not or no longer taking part in combat or enjoy specially protected status, such as … wounded persons and prisoners of war.
13 Protected persons
13.1 Behaviour with regard to the wounded, sick and shipwrecked and medical and religious personnel
173 Wounded, sick and shipwrecked persons become protected persons as soon as they have laid down their arms or are hors de combat. They must not be attacked.
13.2 Behaviour with regard to combatants and prisoners
182 Persons who clearly indicate their willingness to surrender may not be attacked. As soon as circumstances permit, they must be searched, disarmed and evacuated from the danger zone. This must be done while constantly ensuring one’s own safety at all times (surveying the battlefield, cover, protection against fire).
183 As long as they do not defend themselves, pilots and crew members who parachute from an enemy aircraft in distress to save their own lives may neither be attacked from the air nor from the ground. Once landed, they are treated as prisoners of war. If they do not surrender or resist capture they are considered combatants and may be rendered hors de combat.
186 The white flag
indicates that the enemy wants to negotiate. It can also indicate that the enemy wishes to surrender. Persons, buildings and vehicles marked with the white flag must not be attacked.
Switzerland’s Military Criminal Code (1927), as amended, punishes “anyone who kills or injures an enemy who has surrendered or who has otherwise ceased to defend himself” in time of armed conflict.
Switzerland’s Military Criminal Code (1927), as amended in 2007, states:
Any person who has killed or injured an enemy who has surrendered or who has otherwise ceased to defend himself,
is to be punished with three years’ or more imprisonment or with a monetary penalty or, in less serious cases, with a year imprisonment or less.
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
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.
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:
d. kills or wounds an enemy combatant … who is hors de combat