What law compels countries to take prisoners who are NOT trying to surrender?

Question

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

• Under the traditional rules of war you are not allowed to simply kill all of your opponents but are supposed to take prisoners of war when possible

• No. Legally Russian military has no right to kill or murder anyone. If a soldier receives an order to "kill" the enemy he legally should refuse to follow it. Orders only can be of the form like "push the enemy from the place A", "capture place B", "strike place C (say, command centre)". There can be order to strike enemy infantry, but not to kill enemy infantry - there is a difference. Everybody always has right to surrender. I know that Russian secret services recently assassinated some people abroad, such as terrorist Yandarbiev but my conviction it is illegal and a borrowing of US methods. _{Comments might be deleted soon}

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 DOES NOT wish to surrender? (as opposed to simply killing everyone they can on opposing side as long as they don't try to surrender explicitly).

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 kill all opposing fighters - instead of offering to surrender, and/or trying to capture as POW - be an illegal order)?

Answer 1

There is no law which states that nations engaged in combat have to take prisoners who are not surrendering. Combatants who are not surrendering are still combatants and can be killed or injured accordingly.

If combatants refuse to lay down arms they are considered to be combatants under Article 3 referenced below.

Reference:http://www.icrc.org/applic/ihl/ihl.nsf/ART/380-600006?OpenDocument

Answer 2

Since you are quoting my comments in the question, I will try to clarify what I meant and try to resolve your confusion.

Why an order to kill Mr. John Doe "the Enemy" issued to the military may be illegal?

Because Mr. Doe may decide to surrender. But upon approaching the opposing side he will be killed - because they have the order to kill him. But killing those who wishes to surrender is illegal. That's why the military usually issues orders to strike certain positions rather than killing somebody.

Now you can ask, whether an order issued not to the whole military but to say, air drone corps to kill Mr. Doe may also be illegal? Or why may be illegal having some government killing lists.

This is because Mr. Doe may retire from the opposing force, ceasing to be combatant. He can move to another, neutral or friendly country. But the US still has him in their killing list. An air strike upon the territory of a neutral country is evidently illegal. Similarly illegal to target a former combatant, who laid arms, a civilian.

That's why the military usually does not maintain list of people to be killed but rather targets enemy's command centers.

It seems that people get into the US killing list for life and there is no way to get out of the list.

Note that a person suspected in terrorism is not necessarily a combatant. If such person is not surrendering, there can be a lawful trial in absentia that can sentence the person to death. Extrajudical killing of such person based only on suspicion is evidently illegal both on friendly or enemy's soil.

Answer 3

I already answered this in the previous question:

Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, (...)

(from Geneva convention)

This means that desire to surrender does not matter if you are already captured.

From additional protocol to this convention:

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.

A person is hors de combat if: (a) he is in the power of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;

This actually means that anybody incapacitated should not be attacked.