Norma relacionada
Netherlands
Practice Relating to Rule 47. Attacks against Persons Hors de Combat
The Military Manual (1993) of the Netherlands provides that any person placed hors de combat may not be attacked.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-3.
In addition, “attacks against … a person who is recognized to be hors de combat” are listed as a grave breach of the 1977 Additional Protocol I. Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-5.
The Military Manual (2005) of the Netherlands states: “The humanitarian law of war provides for the safeguarding of fundamental human rights of certain categories of persons who are not involved in the fighting, or no longer taking part in combat.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0117.
According to the manual, the humanitarian law of war provides “rules for the protection of different categories of people and property which are not, or have ceased to be, involved in the fighting, e.g., the wounded and sick, shipwreck survivors, prisoners of war, civilians and civilian objects”.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0118–0119.
The manual also states: “The belligerents must leave those who are outside the armed conflict out of reach of military operations, and refrain from deliberately attacking them.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0225.
In its chapter on the protection of the wounded and sick, the manual states:
All wounded and sick, also shipwreck survivors, to whichever party they belong, should be spared and protected. The terms “respected” and “protected” are complementary. “Respected” means not harmed, not exposed to suffering or injury and not killed. “Protected” means active safeguarding against dangers and prevention of suffering. Any attack on the lives of the wounded and sick is prohibited. In particular, they must not be killed or exterminated and must not be subjected to torture or any other forms of cruelty.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0603.
In its chapter on non-international armed conflict, the manual states: “It is prohibited to attack an adversary who has laid down his arms or surrendered.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1042.
In its chapter on peace operations, the manual states: “Persons who are not, or have ceased to be, participants in fighting or hostilities should be protected.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1228.
Under the International Crimes Act (2003) of the Netherlands, it is a crime, during an international armed conflict, to commit
the following acts, when they are committed intentionally and in violation of the relevant provisions of Additional Protocol (I) and cause death or serious injury to body or health:
…
(v) making a person the object of attack in the knowledge that he is hors de combat.
Netherlands, International Crimes Act, 2003, Article 5(2)(c)(v).
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.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, pp. IV-3 and IV-4.
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.”
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-36.
The Handbook adds: “Wounded and sick soldiers who have laid down their arms have to be spared and protected, whatever party they belong to.”
Netherlands, Handboek Militair, Ministerie van Defensie, 1995, p. 7-40.
The IFOR Instructions (1995) of the Netherlands provides: “Members of enemy troops who want to surrender may not be maltreated.”
Netherlands, IFOR Instructiekaart, geweldsinstructie, First Edition, 18 December 1995, § 4.
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.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, §§ 0409–0410.
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.
Netherlands, International Crimes Act, 2003, Article 5(3)(e).
The Military Manual (1993) of the Netherlands provides that, when a person falls into the hands of the adversary under exceptional circumstances preventing his evacuation as a prisoner of war, this person must be released. This situation can occur, for instance, for a long-range post.
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IV-4.
The Military Manual (2005) of the Netherlands states: “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.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0410.
At the CDDH, the Netherlands stated:
The word “feasible” when used in Protocol I, for example in Articles 50 and 51 [57 and 58], should in any particular case be interpreted as referring to that which was practicable or practically possible, taking into account all circumstances at the time.
Netherlands, Statement at the CDDH, Official Records, Vol. VI, CDDH/SR.42, 27 May 1977, p. 214, § 61.
Upon ratification of the 1977 Additional Protocol I, the Netherlands declared that “the word ‘feasible’ is to be understood as practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations”.
Netherlands, Declarations made upon ratification of the 1977 Additional Protocol I, 26 June 1987, § 2.
