Rule 126
It is prohibited to deny quarter to those manifesting the intent to surrender.
[Commentary]
- This Rule is based on Art. 23 (d) of the 1907 Hague Regulations[670] and on Art. 40 of AP/I.[671] See also Para. 6.2.6. of NWP.[672]
- To give quarter to an enemy means to desist from further attack.
- Persons who surrender (or give themselves up for capture, see paragraph 6 of the Commentary on Rule 125) no longer pose a threat to the enemy. It is unlawful to kill or injure such persons regardless of whether they have combatant status or not.
- On the face of it, there may seem to be an inconsistency between Rule 126 and Rule 15 (a), inasmuch as Rule 15 (a) refers explicitly not only to the denial of quarter but also to the threat of following such a policy. However, the Group of Experts felt that Rule 126 deals only with post-surrender situations, and therefore there was no need to reiterate the prohibition of the threat of a “no quarter”-policy.
- If an individual soldier manifests the intent to surrender while his comrades continue to fight, difficult situations may arise. The following considerations must be borne in mind: (i) in battle it may be impossible to distinguish between the individual who has surrendered and his comrades who continue the fight; and (ii) the soldier purporting to surrender may be conspiring with his comrades, acting perfidiously in order to lure the enemy into a trap. Hence, the importance of Rule 127.
- As indicated in paragraph 6 of the Commentary on Rule 125, Rule 126 applies both to surrender in in-ternational armed conflict, and to capture in non-international armed conflict.
- Art. 23 of the 1907 Hague Regulations: “In addition to the prohibitions provided by special Conventions, it is especially forbidden : … (d) to declare that no quarter will be given.”
- Art. 40 of AP/I: “It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis.”
- Subpara. 3 of Para 6.2.6 of NWP: “The following acts, if committed intentionally, are examples of war crimes that could be considered grave breaches: … (4) Denial of quarter (i.e., killing or wounding an enemy unable to fight due to sickness or wounds or one who is making a genuine offer of surrender) and offenses against combatants who have laid down their arms and surrendered.”
Categories: S: General Rules
