Hors de Combat Protection in the Law of War

PERTANYAAN

I have heard the term hors de combat in the law of war. What is hors de combat? Who are examples of hors de combat?

INTISARI JAWABAN

Hors de combat in short is defined as a person who is recognized or who in certain circumstances should not be subjected to attack if:

1. he is in the power of an adverse party;
2. he clearly expresses an intention to surrender; or
3. he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself

But hors de combat protection can cease for certain reasons. What are they?

Please take a look at the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Mengenal Perlindungan Hors de Combat dalam Hukum Perang, written by Renata Christha Auli, S.H. and was published on Wednesday, 15 November 2023.

This is an updated version of the article with the same title, written by Saufa Ata Taqiyya, S.H., and was first published on Friday, 12 March 2021.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

International Humanitarian Law

International Humanitarian Law ("IHL") is a branch of international law, which is also another term for the law of war or the law of armed conflict.[1]

The main purpose of IHL is to limit the means and methods of warfare that may be used by parties to war and to ensure the protection and humane treatment of persons who do not, or no longer, participate directly in warfare. In short, IHL consists of rules of international law that establish minimum humanitarian standards that must be respected in any situation of armed conflict.[2]

Because it is a branch of international law, the legal sources of IHL come from 3 sources, namely international treaties, customs, and general principles of law.[3]

You can read the further definition of IHL in Definition and Principles of International Humanitarian Law.

Hors de Combat Protection in IHL

To answer your question, in an armed conflict, protected persons include combatants and civilians. Combatants who are hors de combat must be protected and respected in all circumstances.[4] So, what is hors de combat?

Essentially, what is meant by hors de combat is combatants who are no longer involved in combat due to illness, injury, and stranding.[5] In IHL, the protection of hors de combat is regulated under Article 41 number 1 of Additional Protocol I 1977, a person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.

Then, a person is hors de combat if:[6]

1. he is in the power of an adverse party;
2. he clearly expresses an intention to surrender; or
3. he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;

provided that in any of these cases, he abstains from any hostile act and does not attempt to escape.[7]

The intention to surrender can be done in various ways depending on the situation. The most common way in land-based warfare is by laying down weapons and raising hands, or by emerging from a hiding place unarmed while waving a white flag.[8]

As mentioned above, hors de combat protection ceases when the person commits an act of hostility, resistance, or escape. For example, a soldier wounded on the battlefield is not entitled to protection if he continues to fight.[9]

Furthermore, the rule of hors de combat protection has also become customary international law codified by the International Committee of the Red Cross ("ICRC") in Rule 47 Attacks against Persons Hors de Combat, making it binding on all states, including those that have not ratified.

A combatant will automatically be treated as a prisoner of war if they are no longer able to continue fighting (hors de combat) and fall into the hands of the enemy. The protection and rights of a prisoner of war are regulated in the Geneva Convention III. Here is the following explanation.

Protection of Prisoners of War

Hans-Peter Gasser summarizes the treatment given to prisoners of war as stipulated in the Geneva Convention on the Treatment of Prisoners of War (Geneva Convention III) as follows:[10]

1. When arrested (captured), Prisoners of War (“POW”) are obliged to give information about their name, rank, date of birth, and number of their members. They shall not be compelled to give further information under any circumstances. Torture and ill-treatment of prisoners of war are considered war crimes;
2. Immediately after being captured, POWs are entitled to be provided with an arrest card. The arrest card is then sent to the Official Information Bureau in the POW's home country via the ICRC Central Tracing Agency. The ICRC Central Tracing Agency has the task of providing information to the POW's family so that the POW's relationship with their family can be maintained;
3. As soon as possible, POWs should be moved from dangerous areas to safe places. Their living conditions should be equivalent to those of members of the captive nation's armed forces living in the area;
4. Conditions of imprisonment take into account the customs and habits of the prisoners;
5. Healthy POWs may be required to work, but they may perform dangerous work if they consent. An example in this regard is mine clearing work;
6. POWs have the right to correspond with their families (usually letters and postcards are sent through the ICRC Central Tracing Agency). They may also receive assistance in the form of individual parcels;
7. POWs are subject to the laws of the capturing state, in particular the laws applicable to the armed forces. In the event of a violation, they may be subject to criminal and disciplinary sanctions in accordance with the laws of the capturing state. The capturing state may also punish POWs for offenses they committed before they were captured. For example, accusations of war crimes committed in occupied areas or on the battlefield;
8. Convicted POWs are entitled to fair trial guarantees and if found guilty and sentenced, they retain their status as POWs. This means that after serving his sentence, he has the right to be returned to his home country;
9. Reprisals against prisoners of war are prohibited.

Also read: War Crimes: Definition, Types, and Tribunals

Example of Hors de Combat

To answer your question about who constitutes hors de combat, we will give examples from past or ongoing armed conflicts. In the armed conflicts between Iraq and the United States, and the war between Israel and Palestine, members of the armed forces or combatants experienced various violence beyond combat. The same applies to civilians who are victimized, whether by violence, shooting, or killing.[11] These people are then referred to as defenceless persons, or people who lack protection.[12]

Then, people involved in armed conflict (for example combatants in Iraq v. United States war, and combatants in Israel v. Palestine war) if they fall into the hands of the enemy so that the combatant becomes hors de combat, he must be made a prisoner of war. Thus, the capturing party must fulfill its obligation to treat prisoners of war humanely, as stipulated in Geneva Convention III.

Also read: Israel-Hamas Conflict, Is it IAC or NIAC?

This is our answer, hopefully, you find it useful.

Legal Basis:

1. The Geneva Convention 1949, accessed on November, 13^th 2023, at 22.02 Western Indonesian Time (zone);
2. Additional Protocols 1977, accessed on November, 13^th 2023, at 23.10 Western Indonesian Time (zone).

Reference:

1. Adwani. Perlindungan Terhadap Orang-Orang dalam Daerah Konflik Bersenjata Menurut Hukum Humaniter Internasional. Jurnal Dinamika Hukum, Vol. 12, No. 1, January 2012;
2. Arlina Permanasari (et.al). Pengantar Hukum Humaniter. Jakarta: International Committee of the Red Cross, 1999;
3. Harry Purwanto. Hukum Humaniter Internasional dan Hukum Hak Asasi Manusia. Mimbar Hukum, Volume 18, No. 2, June 2006;
4. Indah Sari. Tinjauan Yuridis Hubungan Kejahatan Perang dan Hukum Humaniter Internasional.  Jurnal Ilmiah Hukum Dirgantara, Vol, II, No. 2, March 2021;
5. Nils Melzer. International Humanitarian Law a Comprehensive Introduction. International Committee of the Red Cross, November 2019;
6. Rule 47. Attacks against Persons Hors de Combat, accessed on November, 13^th 2023, at 21.30 Western Indonesian Time (zone).

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[1] Harry Purwanto. Hukum Humaniter Internasional dan Hukum Hak Asasi Manusia. Mimbar Hukum, Volume 18, No. 2, June 2006, p. 188

[2] Nils Melzer. International Humanitarian Law a Comprehensive Introduction. International Committee of the Red Cross, November 2019, p. 17

[3] Nils Melzer. International Humanitarian Law a Comprehensive Introduction. International Committee of the Red Cross, November 2019, p. 21

[4] Arlina Permanasari (et.al). Pengantar Hukum Humaniter. Jakarta: International Committee of the Red Cross, 1999, p. 163

[5] Indah Sari. Tinjauan Yuridis Hubungan Kejahatan Perang dan Hukum Humaniter Internasional.  Jurnal Ilmiah Hukum Dirgantara, Vol, II, No. 2, March 2021, p. 37

[6] Article 41 section (2) Additional Protocols 1977

[7] Article 41 section (2) Additional Protocols 1977

[8] Nils Melzer. International Humanitarian Law a Comprehensive Introduction. International Committee of the Red Cross, November 2019, p. 106

[9] Nils Melzer. International Humanitarian Law a Comprehensive Introduction. International Committee of the Red Cross, November 2019, p. 106

[10] Arlina Permanasari (et.al). Pengantar Hukum Humaniter. Jakarta: International Committee of the Red Cross, 1999, pp. 166-168

[11] Adwani. Perlindungan Terhadap Orang-Orang dalam Daerah Konflik Bersenjata Menurut Hukum Humaniter Internasional. Jurnal Dinamika Hukum, Vol. 12, No. 1, January 2012, p. 103

[12] Arlina Permanasari (et.al). Pengantar Hukum Humaniter. Jakarta: International Committee of the Red Cross, 1999, p. 166