This arose around some comments on " Is it true that the US president can execute anyone without a trial? "

  1. Is there any international law, or convention (including Geneva) which compels any country participating in a war to take prisoners when a person fighting on the opposing side wishes to surrender? (as opposed to simply killing people who try to surrender to be taken prisoner?)

  2. Is there something in sovereign law of major countries (I'm specifically interested in USA, USSR-or-RussianFederation, and France) which compels their military to do so, independently of international law (e.g. a law which would make an order to NOT take a surrendering fighter as POW and kill him instead be an illegal order).

  • Related: But concerning people who are NOT trying to surrender: politics.stackexchange.com/questions/1147/… – user4012 Mar 12 '13 at 15:15
  • Please note that I'm looking for actual wording from relevant legal documents, no simply opinions. – user4012 Mar 12 '13 at 15:16
  • And the downvote is for? – user4012 Mar 12 '13 at 18:14
  • I didn't downvote, but your selection of major countries seems arbitrary. What about China, India, Indonesia, Brazil? – gerrit Mar 13 '13 at 12:43
  • @gerrit - Not arbitrary at all. USA/USSR because they were explicitly discussed in the comment thread which sprung this question. France because it's the main war-fighting player right now (Mali, Libya) and I wanted a sample that wasn't the Big Two. – user4012 Mar 13 '13 at 13:21

Geneva convention of 1949 states that:




It seems that any such person under enemy's power has the right to be treated as a POW. On the other hand, people who are not organized, and do not "have a distinct sign" obviously could be treated as common criminals, i.e. not recognized as POWs.

It should be noted that this article only has force on the territory under control of the power under consideration.

A newer protocol of 1977 to the Geneva convention expands on this:

Art 41. Safeguard of an enemy hors de combat




A definition of a combatant is also clarified:

Art 44. Combatants and prisoners of war





This means that a signatory to this convention has no right to just kill members of organized resistance groups who fell under their power. On the other hand, people who are suspected in terrorist activity but not belonging to the combatants are subject to civil laws installed on an occupied territory by the occupying power. They should follow article 43 of the Hague Convention of 1907:


The legal power of these international conventions is enforced in Russian Federation by the article 236 of the Criminal code "Using prohibited means and methods of waging war" with the penalty up to 20 years in prison.

  • I don't see how the quote from 1949 has anything to do with what I asked? But 1977 is precisely what I was asking about. +1 – user4012 Mar 14 '13 at 14:54
  • @DVK the 1949 convention is still in force, it just was amended. One also should check which powers have each of these documents ratified. – Anixx Mar 14 '13 at 16:01

This article by the Guardian discusses an incident where an American Apache killed Iraqi insurgents that tried to surrender. The fact that they needed clearance by a lawyer indicates that there is at least some legislation on surrendering and having to take the surrenderers (surrenderees?) prisoner rather than executing them.

It is, apparently, non-trivial:


This page at howstuffworks has a relevant mention, and links to the Fourth Hague Convention (1907).

Many of the laws governing battle are fairly obvious: It is illegal to misuse a white flag, a symbol of surrender or truce (Hague IV); it is illegal to kill or injure a person who has surrendered; it is illegal to attack a defenseless person or place; it is illegal to attack a building that is being used as a hospital. Some of the rules, however, are less patent.

Indeed, Hague Convention IV clears up the issue.




You can find the article here: Section II (HOSTILITIES), Chapter I, Article 23

  • Does stating "I surrender" constitute enough of surrendering, or does the surrender need to be formally accepted for Article 23 to take effect? – user4012 Mar 13 '13 at 20:46
  • That is an interesting point - the article by the Guardian indicates that this could be a bit of a gray area. Apparently, in this case lawyers concluded that surrendering to an aircraft is impossible. I can't seem to find conclusive sources just yet. – Joost Mar 13 '13 at 22:18
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    I wonder if Falujah would constitute a precedent for dispiting this whole notion in court (when there were several incidents of US troops were shot and killed and blown up by people who were pretending to surrender). – user4012 Mar 14 '13 at 0:50
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    @DVK Fallujah wouldn't be the first time - Japanese troops apparently pretended to surrender in WWII. – Andrew Grimm Mar 15 '13 at 9:22
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    @Joost according the Geneva convention cited in my answer, a person who showed intention to surrender should not be attacked, whether of not their surrender accepted. – Anixx Oct 5 '13 at 10:58

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