The core question we will now address is who precisely, given the above treaty instrument, is to be deemed hors de combat during the course of hostilities. There are some obvious classes of individuals specifically picked out in Art. 41, such as those who are unconscious, those who are so severely sick or wounded as to be utterly incapable of defending themselves, and those who have surrendered. However, what of individuals who are generally combat-effective, yet for some reason cannot defend themselves for contextual reasons, or cannot defend themselves during the duration of a combat engagement (even though they might be threatening later)? Or what of individuals who are unarmed but still dangerous, or those who are armed but so laughably underequipped or undertrained as to be virtually incapable of creating a threat? In what follows, we examine these questions in full, and argue that in most cases, the deciding factor will be contextual, and that by and large, the set of individuals deemed to be hors de combat will likely be larger than is usually taken to be the case.
In or Out of Combat?
The core intent of Art. 41 is to provide a defense for persons who are no longer a part of combat, yet who have not yet been taken into custody and made prisoners of war [
Appendix A]. It is for this reason that it picks out individuals who cannot defend themselves due to unconsciousness, wounds, or sickness—as these persons could be taken into custody at any time—or picks out individuals who have expressed an intent to surrender (but who have not yet been taken into custody). By the same line of reasoning, combatants “in the power of an adverse Party” are taken to be protected due to the fact that they cannot be seen to be in combat any longer (otherwise they would not be in the power of their enemy); a man with effective means to defend himself and thwart capture cannot be seen to be in anyone’s power. Moreover, the AP I official Commentary maintains that “[a]defenseless adversary is
hors de combat whether or not he has laid down arms” [
11], showing that the core point of Art. 41 is not whether or not enemies have surrendered (or even intend to surrender), but whether or not they can still be seen to be a part of combat. If they cannot be seen that way, that is, if they are out of combat (
hors de combat), then they are protected under Art. 41 [
Appendix A].
An important implication of this element of Art. 41 is that whether or not an enemy is to be deemed hors de combat is likely to depend upon very specific contextual factors in a given case. To see this, let us consider a handful of examples.
First consider a hypothetical encounter set in the First Gulf War, which we will call
Tanker. Suppose a Coalition tank brigade is rolling through the desert, far from any other friendly soldiers or civilians, and they happen to come across an Iraqi platoon of footmen. The Iraqi soldiers have small arms, but nothing besides that, something which the Coalition tankers can see through their sights. The tankers also do not see any means of communication with which the footmen could call for support or radio in the tanks’ position, nor do the tankers have any evidence to suggest there is such equipment out of sight somewhere near. The tanks approach the Iraqis, and are presented with a number of choices: they could continue on their way toward their objective and ignore the Iraqis; they could disarm the Iraqis and then continue on their way; they could take the Iraqis prisoner and return to base; or they could engage and kill the Iraqis (something they can do with impunity, given that the Iraqis have no available means for effectively attacking tanks). (Importantly, in this case the tankers are relatively certain that the Iraqis are powerless against them. If there is any uncertainty, the following argument will not hold. However, it should also be noted that there are many instances in modern warfare where one party can have such knowledge, and may even have such knowledge long before making contact with an enemy, due to the fact that certain nations possess weapons and armaments which have no effective counter from particular enemies) [
Appendix A].
In such a case, the Iraqis are armed, and have shown no intent to surrender, but in this precise case, they are also clearly defenseless. Moreover, given that they could fire their rifles at the tanks all day to no effect, they are, from the tanker’s point of view, out of combat. That is, to use the French, they are hors de combat. And importantly, they are hors de combat from the tanker’s perspective not because they are wounded or unarmed (in fact they are both healthy and armed), but because they could not possibly engage the tanks in a meaningful manner. It is the utter and complete irrelevance they hold with regard to the tanks’ mission that makes them effectively out of combat, or hors de combat.
However, one may object that soldiers are often targeted even when they have no defense, and that this is perfectly correct. More strongly, one might object that it is the goal of military men and women to do their utmost to outmatch their enemies, such that they may strike with impunity. After all, that is the point of calling in air or artillery strikes, to hit an enemy in such a way that they cannot defend themselves, and thus preventing any risk to your own people in the process [
Appendix A]. However, the point in the above example is not precisely that the Iraqis are defenseless, but rather that they are out of combat, or
hors de combat. To put it differently, in order for the words of the AP I Commentary to sensibly capture the customary legal understanding of
hors de combat status, it should not say that a “defenseless Adversary is
hors de combat”, but rather that a “powerless Adversary is
hors de combat” [
Appendix A]. This is because whether or not a soldier can effectively defend himself is beside the point as to whether or not he is deemed “in combat”. However, a soldier who is powerless, that is, one who can have no impact on his enemy, truly is out of combat, or
hors de combat. To better see this, consider a variant of the above example, which we will call
Tanker with Trooper.
Imagine that everything is as described above, except that the tank brigade is providing escort to a group of Coalition foot soldiers. These additional Coalition troops are militarily on par with the Iraqis encountered, with both groups being capable of inflicting casualties on the other.
In this scenario, the Iraqis are just as outmatched as before. In fact, with a smattering of foot soldiers alongside the tanks, the tank brigade is, if anything, more overpowering to the Iraqis, making the Iraqis, if anything, more defenseless. However, the Iraqis, though clearly outgunned and without hope, can still inflict casualties on this attacking force. As such, the Iraqis are not properly powerless against this enemy (despite being effectively defenseless), and so the Iraqis are clearly not out of combat. That is, they cannot be seen to be
hors de combat, despite the fact that they are just as, if not more, defenseless than in the previous case [
Appendix A].
If one agrees that the Iraqis are not
hors de combat in the
Tanker with Trooper case, then it follows that there is more to being
hors de combat than merely being defenseless. Moreover, it seems that the essential component to being deemed
hors de combat turns out to be the very intuitive notion of whether or not a soldier is in fact in or out of combat, which itself hinges on whether or not a soldier holds any power to harm his or her enemy. If I can harm my enemy, then I am obviously a part of combat, but if I may be killed and can do nothing to prevent that, and I cannot do anything to harm my enemy in other ways (say, by killing enemy soldiers other than my attacker), then I am no longer a part of combat. (It is also worth pointing out that there is little military reason to kill such an individual, as it costs time and money–in the form of spent ammunition–to kill such a person, but provides only minute military gain. Given this, there is a potential case to be made that killing such men would violate the principle of necessity, as embodied in AP I, Art. 35 [
12,
13,
14,
15,
16,
17].
At this point, one may object that our position is too broad, in that many soldiers far from the front lines may permissibly be targeted, even though they are not part of combat and may also be defenseless against the attacks on them. For example, one might imagine a military supply train bringing tanks and their crews to the front, but which is still very far from the front and will take some time to get there. Even though it is far away, and even though it won’t be dropping off its tanks and soldiers anytime soon, it is perfectly legal to target such a train. As such, basing hors de combat status on whether or not a soldier is in combat at that moment seems to provide an unfounded (and extreme) widening of the protected status.
To this objection, there is no direct response which can be given. However, it is worth pointing out that hors de combat status is not understood in a fully coherent manner. For example, a combatant rendered unconscious during fighting is protected under Art. 41, yet one who is sleeping in his barracks is not so protected. Thus, it is not unthinkable that hors de combat status may be extended in one situation and withheld in another which is structurally quite similar. Moreover, even if the military supply train might permissibly be targeted in the above example, it almost certainly should not be targeted in a minor variant of the case, to which we now turn.
Imagine the case as above, but further suppose that the supply train is across a deep river, and as part of the war effort, every strong bridge over that river has been destroyed. In this scenario, the train is trapped and cannot move to the front lines. Every tank aboard the train is still in essence combat effective, but there is no way for them to reach the actual fighting. Given this, the tanks are, for all intents and purposes, out of combat. In this case, we should regard such units as
hors de combat, not because they are necessarily defenseless (though they may also be defenseless against certain forms of attack), but because they are quite simply out of combat,
hors de combat. And if this granted, what makes them out of combat in this situation has nothing to do with the tanks or soldiers themselves, but is rather a feature of the context of this scenario. They are out of combat because the bridges are out [
Appendix A].
Thus, whether or not an individual (or unit) is deemed to be hors de combat will depend upon contextual factors, most importantly, whether or not the individual (or unit) can actually contribute to the fighting. In some cases, combatants will be rendered hors de combat because there is no way they can harm their adversary, and in others it will be because they are excluded from the fighting altogether due to the actions of others (or possibly due to environmental hindrances). But in any case, one’s status as hors de combat will be impacted upon by both that fighter’s capabilities, and the capabilities of his enemy. And as a related point, whether or not one is armed need not impact on hors de combat status in the least. An unarmed man may still be very capable of killing his enemies, and there may also be armed men who are utterly powerless against their enemies, because their enemies are far better armed and armored. The important point is not what one carries or what one can do, but rather what both you and your enemy carry, and what both you and your enemy can do to one another. The greater the gap between the two, the more likely the weaker party will have to be viewed to be out of combat, simply because the stronger will be impervious to harm from the weaker.
At this point, one may grant all of the above arguments, but still wonder what the precise upshot of this is for commanders and soldiers on the ground. Put differently, assuming the Iraqis are hors de combat in the Tanker case, what does that mean for the tankers themselves? Must they take the Iraqis prisoner? Must they disarm the Iraqis? Even more strongly, if we have assumed the Iraqis are “in the power” of the tankers, does that mean the tankers are required to provide the protections and supplies which would be demanded if they had taken the Iraqis prisoner?
In answer, we would stress that whether or not the Iraqis (or anyone else) are deemed to be hors de combat provides no guidance with regards to these further questions. All that hors de combat status demands is that the tankers (or anyone else) refrain from making the Iraqis the object of attack, provided the Iraqis abstain from hostile acts and do not attempt to escape. However, it is up to the tankers themselves whether they choose to simply continue on with their mission, or instead to disarm the Iraqis, or instead to take the Iraqis prisoner. What the tankers may not do is simply engage the Iraqis, as they are to be treated as hors de combat in that situation. Importantly, however, they are only hors de combat for as long as they act in accordance with the final proviso of Art. 41. Thus, if the tankers demand that the Iraqis throw down their weapons so that the tankers may run over their rifles (effectively disarming those footmen), the Iraqis must comply with this or accept that they have made themselves liable to attack; they must act the prisoner or the enemy, but cannot enjoy the protections of the former while remaining the latter. In this way, Art. 41 provides a protection for persons who are powerless, but does not give blanket permission for powerless individuals to exploit their weakness. It guards them against initial and unnecessary violence, but simultaneously demands that they either peaceably comply with their victors’ requests, or accept that they have forfeited the safeguards of hors de combat status.
As a final point, it is worth clarifying that we do not think that the foot soldiers in Tanker must necessarily be viewed to be hors de combat. Moreover, we accept that there is, and will continue to be, reasonable disagreement about when one party is “in the power of an adverse Party”, or when one party is truly defenseless in the face of its enemy’s might. Our point is that what renders one defenseless or “in the power” of another cannot be determined with a one-sided assessment of a single parties’ capabilities; it must be put in the context of a relational assessment based on the capabilities and limitations of both parties. Thus, being armed or unarmed, being wounded or healthy, or being conscious or not, rarely provides adequate information for determining hors de combat status. Rather, that will virtually always demand a view to the capabilities of combatants on both sides of a conflict, and to the differences between them. Moreover, one’s status as hors de combat (or not) may depend on factors wholly outside one’s control, like whether or not bridges have been destroyed, or whether or not the enemy you face has men who are vulnerable to your arms. The core lesson is that persons are deemed out of combat, hors de combat, in virtue of a myriad of factors, many of which will be derived from the context within which the assessment is being made.