Practice Relating to Rule 47. Attacks against Persons Hors de Combat
Section B. Specific categories of persons hors de combat
The Military Manual (1993) of the Netherlands states:
It is prohibited to attack an adversary who has laid down his arms or has surrendered.
In addition, an adversary who has indicated his intention to surrender may not be attacked.
An adversary who is unconscious or who is otherwise placed hors de combat by wounds or sickness, and who is no longer capable of defending himself may not be attacked either. In general, any person who is in the power of an adverse party may not be attacked.
A combatant who has just become a prisoner of war and uses violence or escapes ceases to be hors de combat
and may again be the target of attack.
The Military Handbook (1995) of the Netherlands states: “It is prohibited to attack … combatants who are no longer fighting because of wounds or sickness and who have surrendered.”
The Handbook adds: “Wounded and sick soldiers who have laid down their arms have to be spared and protected, whatever party they belong to.”
The IFOR Instructions (1995) of the Netherlands provides: “Members of enemy troops who want to surrender may not be maltreated.”
The Military Manual (2005) of the Netherlands states:
0409. An adversary who has laid down his arms or surrendered may not be attacked. An adversary who intimates that he is going to surrender also may not be attacked: he must be treated as a prisoner of war. An adversary who is unconscious or otherwise hors de combat due to wounds or sickness, so that he cannot defend himself, may not be attacked. In general, a person who is in the power of an adversary may not be attacked. However, a combatant who has been taken as a prisoner of war and uses violence or escapes has himself forfeited his “hors de combat” status and may again be the target of an attack. The degree of force will depend on circumstances and need.
0410. If a person falls into the adversary’s hands and the conditions of battle prevent that person from being removed as a prisoner of war, that person must be released.
A British military tribunal rejected an appeal to necessity of war in the case of the Peleus
, a German U-boat whose commander had given the order to fire on life rafts carrying drowning survivors from a ship torpedoed by him, to prevent them from revealing the presence of his submarine. An American military commission would not admit an appeal to necessity of war by the German Lieutenant Thiele who, while hiding from American troops encircling him, had allowed a wounded American prisoner of war to be killed.
The International Crimes Act (2003) of the Netherlands provides that the following constitutes a crime, when committed in time of international armed conflict:
killing or wounding a combatant who is in the power of the adverse party, who has clearly indicated he wished to surrender, or who is unconscious or otherwise hors de combat
as a result of wounds or sickness and is therefore unable to defend himself, provided that he refrains in all these cases from any hostile act and does not attempt to escape.