'There are No Enemies after Victory': The Laws Against Killing the Wounded
33 Pages Posted: 9 Mar 2016
Date Written: March 9, 2016
Louis Pictet, the influential and official commentator on the 1949 Geneva Conventions, described the principle of respect and protection for the battlefield wounded and sick as the "keystone" of the entire edifice of the Geneva Conventions. Despite the centrality of the principle in international humanitarian law (enacted as part of the first Geneva Convention of 1864) it is traditionally viewed as an "easy" principle and one to which scholars and practitioners have devoted little thought. No previous scholarship has traced how the principle slowly evolved from 1864 through three subsequent Conventions (1906, 1929, and 1949) until the Additional Protocol I of 1977 made clear that it was not the "wounded" who received protection but only the wounded "who refrain from any act of hostility" or the "hors de combat." This essay explores this legal evolution. It then looks at relevant modern American military training and doctrine and suggests that America has adopted the most expansive definition available under the law. Finally, this essay examines the impact of the law on the battlefield by examining case studies involving the alleged or possible targeting of the hors de combat in the Iraq and Afghanistan conflicts.
Keywords: International Humanitarian Law, Law of Armed Conflict, Law of War, Hors de Combat, Geneva Conventions
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