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Surrender, Or Else...

by Tony M.

We’ve all watched the Scene in the Errol Flynn type of swash-buckler movie, or read the passage in a book: The Hero manages to defeat single-handedly some of the henchmen and escape the last one, grab a sword, and run after the evil Villain who is trying to abduct his lovely Girl. Villain throws the Girl from himself and turns around pulling out his own sword. The two go at it hammer and tongs, nearly at a match because Hero is tired from a long chase and defeating the henchmen. Out of desperation Hero tries a trick move his (sidekick) Friend has told him about, but he has never practiced, and surprising to both men, it succeeds: it knocks the sword out of Villain’s hand.

They pause for a moment, the sword pointed at Villain’s neck, and Hero declares: “yield, and your life will be spared.”

Villain has no intention of living behind bars or letting Hero win. “Never!” he shouts.

Hero magnanimously gestures at the sword on the ground, and says, “then let’s finish this”.

Villain picks it up, and returns to the fight, but with his mettle diminished by the combination of having been bested once and by the manifest courage and magnanimity of Hero. He now fights with fear in his heart. You can see it in his eyes. After more acrobatic moves than any seven real fights, Hero catches Villain with his sword cleanly out of position, and puts his sword through Villain’s heart. Villain falls to the earth, with any of 10 variations on either (director’s choice:) eternal hatred or final repentance and respect for Hero. Lovely Girl races to his side, and there is the mandatory clinch.

It’s very exciting and thrilling. The outcome makes us all happy again to be on the side of Right and Justice. It makes you ask one question: Is Hero just the stupidest, bone-headed jerk you could have ever imagined?

Why in the name of all that is right and good would he grant to Villain the opportunity to pick the sword back up again? The man has just verified an explicit intention to try and kill Hero no matter what! In addition, if he succeeds, Villain will also kidnap (and any number of additional atrocities implied to) the lovely Girl. He has further just demonstrated near parity of skill. Who in his right mind puts a lethal weapon into the hands of his sworn enemy who intends to use immediately it if he has the opportunity to do so? With little assurance he can best him again? A policeman, today, would be at least suspended, if not fired or even hauled up on charges, for doing something comparable.

The concept of the Scene, and the “logic” of it (scare quotes highly necessary) putatively descend to us from the past, the “Age of Chivalry” and the stories of the Heroes of The Past. It harks back to a time when “men were men and fought each other on a personal level, where courage and manly ability were paramount.” When men faced danger up front and in person. Gentlemen did not “take advantage” of their foes at an unfair disadvantage. Never mind that the men on horseback and encased in armor frequently killed the unlucky louts encased in leather and afoot, doing so with wild abandon, as often as not with a mace to the back of the head. They didn’t “count” because they were not “gentlemen”.

More to the point for our Scene: never mind that trying to disarm your opponent by knocking the weapon out of his hand is part of the point of the manly art of swordsmanship, not “taking unfair advantage”. But what is disarming him for? Pay no attention to the fact that presumably (at least statistically) having the greater success of being able to disarm your opponent was due to putting in more time and effort in practice, which is PART OF the manly art because it forces one to exercise discipline, to undergo pain and discomfort, to tolerate difficulties; and learning techniques meant accepting the humility implied in submitting yourself to the instruction of one whom you acknowledge to be more able, one who is your superior. Also, pay no attention to the implicit principle of the chivalric battle itself, which is that Virtue gives a man the advantage over Evil, and that’s why he will win: the principle has to bear itself out in some detail in which the better man will be better at visiting destruction on the Villain. He either has more resolution, (and thus will outlast the dastardly flash-in-the-pan flamboyance of the Villain), or has more courage (and thus will endure the minor cuts better able to function), or has more this, that, or the other thing which is why he will win. One way or another, all of these are INTERMEDIATE, on the way to getting to the final point, which is that the Hero has (gets, makes) an opportunity in which he can kill the other right now, this very moment, and (or because) the other cannot stop it. Like when he twists his sword just so and the Villain’s sword goes flying away.

Oh, wait, not like that, because then the Villain “cannot defend himself.”

I refer you to the penultimate sentence of the prior paragraph but one: “the other cannot stop it”. Does chivalry stand for the position that “you can try kill your murderous enemy as long as he can continue to STOP you at each moment you try, but as soon as he is unable to *successfully* stop you because you have put him at a momentary disadvantage, you are no longer free to kill him”? That would be … idiotic. Would the good sheriff who has the faster draw because he practiced more be obliged to wait until the slower, less capable villain caught up and drew his gun?

Just for fun, let’s go through the other 6 attempts at the scene before the director settled on version A above.

B: Hero’s experimental twist throws Villain’s sword way out of position, but not out of his hand. Hero spits Villain’s heart in the instant.

C: Hero’s experimental twist throws Villain’s sword up in the air, but Villain catches it again and they continue fighting.

D: Hero’s twist throws Villain’s sword in the air and Hero immediately puts his sword in Villain’s heart. Villain is done for even before his sword hits the ground.

E: Hero’s twist throws Villain’s sword out of his grasp. Villain immediately grabs his cloak and uses it to try to wrap up Hero’s sword in its folds. But Hero manages to avoid the cloak and spits his heart.

F: Hero disarms Villain, who is off-balance and falls to the ground. While Hero is delivering his epic offer, Villain is grabbing a handful of dirt, and he throws it in Hero’s face as his response, then leaps back to fighting.

G: Hero disarms Villain, and offers surrender. Villain yields. Then, when Hero relaxes his guard, Villain grabs his sword once again and leaps at Hero…

Now, ask yourself these questions: In B, why is Hero not “taking advantage” of Villain, who has no weapon immediately available to stop Hero’s sword? He WILL have a sword tip ready, in a fraction of a second, but not right NOW, when he needs it. Is Hero’s action cowardly because his opponent “cannot defend himself?” Or is that just stupid?

If Hero’s slice-up if Villain in B is OK in the 0.3 seconds that Villain’s sword-point is out of commission, then is there any difference for D if Hero slices him during that same 0.3 seconds without waiting to discover whether the sword is in the air or in Villain’s hand or what? Why would there be?

If D is OK in the 0.3 seconds after Hero gets Villain’s sword-point out of the way, why would it not be OK in C in the first 0.3 seconds after the sword goes up? Surely this is fine.

If B and D are OK, and if E is OK with Hero killing Villain after Villain grabs another weapon, surely it would have been OK in E during the 1 second before Villain uses something else to fight with.

If E and F demonstrate that being without ONE weapon does not mean your opponent has nothing else to use as a weapon, why is it reasonable to consider him “unable to defend himself”, given that he might have a lesser weapon? What if he has martial arts, and his own body is a set of weapons? Why must Hero wait to ask, and give his enemy time to re-prepare himself, time to THINK of a new weapon or a ruse? Would it be unjust and even against honor to simply assume that Villain will go on with the fight with whatever means he has in hand, as any courageous and resourceful and desperate man OUGHT TO DO if he is in the right, and thus kill him when he first had the chance?

In G, (the false ‘yield’) is Villain acting immorally, or is he acting properly? If his action is immoral because he is going back on “his word”, then this leads to another question:

Why do the rules of war – in particular, the rules for prisoners – allow that a prisoner may attempt to escape, and even that he has a duty to try to escape if he can, after he has surrendered?

Let’s recall another factoid: American soldiers in WWII were greatly offended by the behavior of some Japanese soldiers, who frequently did NOT abide by what we Americans considered to be appropriate conduct for soldiers who had been captured: when a Japanese raised his hands in token of non-resistance…and then 30 seconds later tried to grab a knife and kill the American soldier, this was taken by the Americans as violating fundamental norms of appropriate war behavior. How is it possible for a prisoner to “have a duty to escape if he can” and yet it be immoral for him to try to escape (30 seconds) after he is caught?

This may feel like a bait and switch on you, but the Scene above was all in preparation for the question about prisoners of war. You may or may not have the details at your fingertips, so I will offer up the following:

The Code of Conduct for the US Armed Forces (henceforth, just ‘CoC’) says the following:

I. I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense.

II. I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist.

III. If I am captured I will continue to resist by all means available. I will make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy.

The root source is an Executive Order by Eisenhower in 1955. There are 3 more articles, not directly germane.

In contrast to the CoC, the Articles in the Geneva Convention on prisoners of war expressly permits use of parole, and does not provide permission for escape:

[part of] Article 21

The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter.

OK, so let me say one thing right up front: whoever put the CoC together had sh&t for brains. Just on its own, it is idiotic: that a private soldier must never surrender (of his own free will), but that his commanding officer can surrender that private (and himself) when they lack the means to resist, are just idiotic provisions. The lack of coordination between these provisions is appalling. Clearly the meaning of “lack the means to resist” needs to be incorporated in to the intention for “of my own free will”, but no rules of interpretation permit one to do so, rather the reverse: if the traditional rules of interpretation were applied, they say that the clear use of “lack of the means to resist” in the latter provision means the legislator was aware of the concept; his refusal to put it into the first provision shows that he did not intend it for that provision.

The third article of CoC, “I will make every effort to escape” runs DIRECTLY contrary to the provision in Article 21 of the GC, that the Detaining Power may impose the “OBLIGATION” of not leaving on the prisoner. Effectively, (assuming that the Detaining Force has a rule saying “prisoners of war must stay in the prison camp”), Eisenhower told his troops to disobey the GC.

Before doing some research, I was under the impression that things like the CoC (and the GC, which I assumed were compatible) were formulated in light of what we (the world, at least the relatively civilized portion, through the 1950s), had come to realize were fundamental principles for ius in bello, i.e. just behavior during war. (As an example, I grew up thinking (along the lines of The Great Escape) that trying to escape is the norm for good prisoners, not some defect.) I now suspect that this is probably not even a close approximation: arguably, most of the modern efforts at “rules” in warfare represent rather purely ad-hoc attempts to minimize the horrors of war, even if the rules arrived at are not particularly based on or integrated with the fundamental principles of ius in bello – or if some are and some are not. See this article by Jeff McMahon for an expansive discussion of the point.

From the early medieval times straight through to modern times, there has been a general recognition that directly lying to someone – even if he is your enemy – is illicit: gentlemen don’t do such things, period. Spies, who lie about their identity and actions, were universally held to be in violation of norms of upright behavior and subject to severe punishment, including death.

But surrendering yourself (or the men in your command) and then trying to escape JUST IS a form of lying. You cannot say “I submit to your control and will no longer take part in hostilities” if you don’t mean it. But if you follow the logic of what this should and must mean to the other side – that they now won’t kill you – it can only hold together if by saying “I will no longer take part in hostilities” it means “for the duration”, i.e. “I will no longer seek to impose on your country any sort of force or violence, good until the signing of an agreement ending hostilities”. For, if the Detaining Force leaves you alive, and you manage to escape, then you will get back in the game as an active hostile and will cause them more damage. Why should they leave that possibility open, when they have you completely at their mercy and can definitively prevent that result by MAKING SURE you never become a hostile force again? If the logic of capture is “if you escape we might find you on the battlefield again”, then it makes no sense not to put paid to the problem and just kill them. That’s what you do to enemy hostiles, whether they are a danger to you right this moment or may be in the future.

GC Article 3:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

The logic of offering a surrender, or of the opposing force accepting a surrender, is that they will NOT apply to you the lethal force they otherwise have every right to apply to an enemy soldier so that you cannot cause their country harm, so you cannot do violence to them or theirs, so you cannot impose your country’s will upon them in any sense. The point of my Scene A, is to show that “I yield” or “I surrender” cannot have any moral force if the meaning is that “I will agree to stop resisting you, for some indeterminate time from .0003 seconds to 30 years, at my discretion and without future warning.” Unless the meaning of a yield or surrender is either “for the future until mutual agreement ends it” or for an explicitly stated time, which the detainee actually is obliged to honor, it is a moral non-entity, a vacuous word. Which would leave the opponent free to go on with the killing that would have been licit had you said nothing at all.

The attitude of the CoC is quite the opposite, though. In that, being a prisoner means the same thing as “you better put me in handcuffs and keep an open eye on me at all times, because at any time I perceive I can further the cause of my country’s armed forces I will do so. That is not “ I will no longer take part in hostilities”, it is “I won’t to the extent you can prevent me” – but that’s the SAME THING as an active hostile, because it is also “I will engage in hostilities to the extent you CAN’T prevent me”, because “I will continue to resist”. It is the same thing as “I am an active hostile force, ready and prepared to harm you when I get the chance, when your attention wanders or I can fool you into a making a mistake”. But to carry the logic of this out, the proper response of the opposing force that has you in their sights is to kill you, right off. If the “captured” soldier promises to continue to resist in every way they can be effective, all you are doing by "capturing" them is creating a nightmare for detainment. You could never be sure that the prisoner won’t decide, at some point, that killing one of the guards is not a net benefit for his country’s pursuit of the war, even if he has to die for it. This is an active hostile just biding his time, not someone “taking no active part in the hostilities”. The normal thing to do with an active hostile who will not yield is to kill him.

It makes much more sense to explicitly provide, in a code of conduct, that a soldier may not surrender unless he is rendered ineffective and is the enemy is presently able to kill him. And if he does surrender, this is the SAME THING as giving his parole, effective until the Detaining Power either returns him to his own country or until an agreed cessation of hostilities. The parole should (must, for the logic to work) mean that the prisoner will not do anything that directly aids his country in its pursuit of the war, nor anything indirectly, to the extent of:
Causing insurrection,
Any ordinary criminal behavior,
Furnishing any information gained during captivity to his country,
Failure to obey just orders regarding detainment.

Indeed, if “indirect aid” could be defined thoroughly enough, the capturing army could release a paroled prisoner right back to his own country, in the surety that nothing he did would improve their position in pursuit of the war. Unfortunately, even so much as raising crops would contribute to feeding soldiers, so it cannot be defined that way successfully. Absent that, they must detain the prisoners, and the Article 21 premise is that that detainment can be OBLIGATORY on the prisoner: he has no moral license to escape if he can.

Ostensibly, Article 21 of GC makes more sense, but then later provisions goof it up. Instead of providing that a person who has given his parole (which is what it means to become a prisoner) is subject to immediately being treated as an active hostile if he breaks parole by trying to escape, it basically says that trying to escape is at worst a misdemeanor and can only be punished (if at all) by a slap on the hand.

Article 91

Prisoners of war who have made good their escape in the sense of this Article [returned to their own Armed Force] and who are recaptured [in later actions], shall not be liable to any punishment in respect of their previous escape.

Article 92

A prisoner of war who attempts to escape and is recaptured before having made good his escape in the sense of Article 91 shall be liable only to a disciplinary punishment in respect of this act, even if it is a repeated offence.

Article 89

The disciplinary punishments applicable to prisoners of war are the following:
1. A fine which shall not exceed 50 per cent of the advances of pay and working pay which the prisoner of war would otherwise receive under
the provisions of Articles 60 and 62 during a period of not more than thirty days.
2. Discontinuance of privileges granted over and above the treatment provided for by the present Convention.
3. Fatigue duties not exceeding two hours daily.

In conformity with the principle stated in Article 83, offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, the wearing of civilian clothing, shall occasion disciplinary punishment only.
Prisoners of war who aid or abet an escape or an attempt to escape shall be liable on this count to disciplinary punishment only.

But formally, it makes no sense to recognize in a prisoner someone who has broken his parole, and ignore the fact that this means he considers himself an active hostile.

All that one can say in support of this approach is that given a long war and thus long internment, prisoners WILL try to escape, they usually will be unsuccessful, and thus they will be relatively ineffective hostile forces. It is, then, less critically necessary overall that the Detaining Force simply treat them as active hostiles. As an ad hoc rule, there will be less overall horror in war (so the claim goes), if we accept that captured soldiers will try to escape even if they have given their parole, and account for that by effectively treating them as unruly adolescents rather than as active hostiles to be shot on sight.

In no way does this even remotely fall in with the attitude of the CoC, however, which is actively opposed to the whole notion of parole. It makes being a US soldier an all-out hostile force no matter what, it undermines (and eventually would defeat) the notion of taking as prisoner a soldier unable to be effective, and would make warfare more horrible. The only thing that can be said in its defense is that in the last 60 years, most or all of the opponents of the US forces were unlikely to abide by the niceties of prisoner of war rules anyway, and the CoC merely prepared them for this fact. Which is even more ad hoc than the GC provisions.

Comments (25)

I completely agree about the ridiculousness of the "duty to try to escape" combined with the Geneva Convention requirement that prisoners not be killed. A medieval would probably have agreed as well--that if a prisoner does not give his parole, he can be executed. And that a prisoner who gives us parole is morally obligated to abide by it. (In Sir Walter Scott novels, which may or may not really represent medieval ideals but are meant to, prisoners surrender with the phrase "rescue or no rescue" and are supposed to refuse the opportunity to be rescued if someone offers it to them afterwards. However, it's understood that their captor must then treat them right, not hold them incommunicado, and offer them the opportunity to be subsequently ransomed. It's more like an elaborate game than anything else.)

As far as the chivalrous norms of not killing a guy when he's dropped his sword, I'm less bothered by the sorites problem there. I can see having some general rule of chivalry like, "You shouldn't kill a guy when you have an unfair advantage" while admitting that there are going to be gray areas and even a certain amount of arbitrariness about what counts as an unfair advantage. The rule is still a high-minded ideal, and high-minded ideals have their place in this world. If your enemy has been knocked out by a falling rock hitting him on the head, killing him then seems unfair. If your enemy has merely slipped on a stone and is out of balance, killing him then seems perfectly fine; he's just a victim of the fortunes of single-handed combat. In between there is the grey area where your enemy slips on a tussock and falls face down on the ground for a moment. Do you wait for him to get up and recover his sword, or not? C.S. Lewis actually puts that very scene (the last one) into a single combat in Prince Caspian. An onlooker is frustrated at Peter's chivalry in waiting for the usurper Miraz to get back up, but he is assured by another on-looker that it's "what Aslan would want him to do." I'm not sure Aslan has such explicit opinions on the ethics of single combat, but I'm pretty sure we are the poorer when we live in a world that doesn't even try to have chivalrous ideals, so I'm willing to give Peter a pass for waiting for Miraz, even if I'm inclined to be more pitiless myself.

It's more like an elaborate game than anything else.

It's funny, because I thought of that too. But in thinking it through, my sense is that it is precisely because it ISN'T a game that parole gets to mean something important.

Compare it to playing hide and seek. If the person who is "it" finds you and tags you, you are "out", for the rest of the round. He can then go and try to catch others. He can leave alone to stew or whatever, because nothing you can do can get you "back in" and playing, you can't touch home base and say "free" because he already tagged you. That's a game. The object is intrinsically without its own value, except inside the game.

In war, the fundamental difference is this: the other side has soldiers who are lawfully (so far as there are rules of war) trying to kill you, not for a game, but for real. They will kill you if they can. They are lawfully doing this because it advances a grave need of their country, and if they don't you will kill them which damages that grave need of their country. This is serious business, not a game. Life and death ride on it, not only yours but your country's. If they get the drop on you, catch you with their gun in your back and yours 10 feet away, they WILL kill you to advance that grave need: that's precisely why they practice the arts of stealth and deception and ambush and tactics and strategy: to get you without what you need to pose a successful defense. But, due to mercy and a universally (almost) agreed willingness to reduce the unnecessary horror of war, all sides agree that IF they get you where you cannot possibly serve your country's interest by continued hostile effort and they can easily kill you, you can take yourself off the table and be removed from the "hostile agent" category, so that you are (all sides agree) no longer able to advance your country's agenda for the war. Period. For as long as hostilities persist. By YOU removing yourself from being able to advance your country's hostile intentions, they no longer need to. Then they don't have any licit purpose in killing you, you are no longer a threat to their country's war effort. That's the logic of surrender: they stop trying to kill you if you cease to be any threat.

If you refuse to remove yourself from the war by refusing to surrender, you are saying "I am continuing my efforts to try to kill you and advance my country's hostile pursuits." That makes you an appropriate target for being killed, regardless of how easy it is for them. Anything else merely leaves you free to return to the hostile violence when they are not prepared for it. But THIS IS WAR, not a game. They are not obliged to pretend that your being temporarily at a disadvantage means that you still cannot find SOME way to hurt them. You are a soldier, and when you refuse to surrender you say "I am a legitimate target for lethal violence." The underlying logic of the "prisoner of war" status is that it is by your being taken off the table as a hostile agent of your country's objectives that you cease to be a legitimate target for being taken out of play by violence.

My point is that "off the table" means off the table until the hostilities are concluded, not "until you fool them and escape". No soldier is obliged to not shoot you merely because they have a large advantage over you, if you won't darn well surrender in that situation. The logic of "they could easily kill you and you can do nothing to prevent it, so they need not ACTUALLY do it" is incapable of being separated from "you ought to surrender because your continued fighting cannot advance your country's interests in any way" together with "and that leaves you not remaining a hostile agent of your country's interests against them until hostilities are concluded." These three pieces are all inherently connected. They cannot be separated without bastardizing the logic.

I like the idea of ransom, but in today's world it is almost inevitable that a returned prisoner will be of assistance to his country (unless he is gravely injured), and this argues against returning him.

If your enemy has been knocked out by a falling rock hitting him on the head, killing him then seems unfair.

The GC puts the shipwrecked sailor and the airman parachuting from his doomed plane in the same boat as the

members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds,

I would argue that like these others, a person who is rendered unconscious may be given the benefit of the doubt that he WOULD surrender, were he able, because (as all the signatories presumably intended) any soldier who is totally unable to advance his country's hostile intent and can be easily killed may as well surrender. But, if he wakes up capable of saying, then at that point he can be given the free choice: surrender, or die. Which is the same choice he would have had if he were merely rendered unable to act, but not unconscious. He doesn't lose his choice, it is merely deferred.

I'm less bothered by the sorites problem there. I can see having some general rule of chivalry like, "You shouldn't kill a guy when you have an unfair advantage" while admitting that there are going to be gray areas and even a certain amount of arbitrariness about what counts as an unfair advantage.

I can agree about the concept of unfair advantage, but I suspect we won't agree on ALL of the particulars.

In between there is the grey area where your enemy slips on a tussock and falls face down on the ground for a moment. Do you wait for him to get up and recover his sword, or not? C.S. Lewis actually puts that very scene (the last one) into a single combat in Prince Caspian. An onlooker is frustrated at Peter's chivalry in waiting for the usurper Miraz to get back up, but he is assured by another on-looker that it's "what Aslan would want him to do."

This makes for a good example, in my opinion. Let's assume, for the sake of the argument, that the "rules" of the single combat were that it was to be "done on a level playing surface, free of obstructions", and that Peter was (by agreement) responsible for designating the ground to be used and responsible for its "fairness". One presumes, then, that he is capable of providing a location that meets the requirements. If he cannot find a suitable location, he is then responsible for saying why the chosen site is defective, for pointing out the tussocks that make it not level. If he fails of that, then Miraz stumbling on a root is indeed an unfair advantage for Peter. And, in the context, I agree with the principle that he shouldn't take that advantage. The world is a better place for that kind of chivalry. Because you agreed to it.

But if the rules were, rather, that each party had his seconds go over the ground and choose it by mutual consent, then Miraz is no less responsible for his stumbling than Peter is, and Peter's advantage is not UNFAIR, it is the natural breaks of providential affairs. It gives Peter the opportunity to jump in and kill Miraz because Miraz has lost HIS advantage of height and expertise. Peter didn't fall over that same tussock, maybe he had to step over it and lost a fraction of a second. Taking that "advantage" is just exactly the same sort as using your opponent's weak side, or his vanity, or your superior stamina, or the luck of a drop of sweat falling in his eyes, or any of the thousand other ways that you get YOUR sword past HIS sword.

The real crux, I think, comes when you do make his sword go flying away, and you have your sword at his throat, and offer surrender. I agree that making the offer is not necessarily foolish or wrong. It is what comes AFTER the next moment that presents the foolishness. When Miraz or my Villain say "never", I say then stab him to death right then and there, no waiting. It isn't the part of chivalry to grant a person who, in the space of time it took to offer and have it refused may have already obtained another weapon (the cloak or the dirt), to grant him still more time to get an even better weapon, the sword. The point of honor has been met and satisfied by making the offer, which was refused. But the logic of the circumstance that allows you to make the offer honorably also requires him to accept it. When the villain of the piece refuses mercy, he deserves no more: kill him. That's the whole point of the sword at the throat, after all. (Pun intended)

If he were abiding by chivalry, if he were a true gentleman, he would have accepted the mercy offered. By refusing it, he has ALREADY closed the door to being treated as a gentleman, he has only himself to blame for his death. By refusing to yield, he has rejected honor and its code, he has declared himself an "ungentlemanly active hostile", and you have no reason to grant him still greater opportunity. His opportunity is already present and active, he may have already planned and be initiating how to defeat you even as he says "never". His "never" is tantamount to "En guarde", because there can be no interstice between an "I do not yield" which means "I shall continuing to try to kill you" and "I am now a real threat which you need to quell."

It is not much different from a Navy Seal sneaking up on a camp guard behind his back and slitting his throat even before he knows there is a hostile in range. He didn't have to know, they are at WAR, that's all the warning you get. The Seal doesn't have to announce his presence, the whole point of sneaking is to catch them unawares, so his capacity to inflict death is at its maximum and theirs at its minimum. It would be a strange world if good tactics were precluded by honor.

It is not much different from a Navy Seal sneaking up on a camp guard behind his back and slitting his throat even before he knows there is a hostile in range. He didn't have to know, they are at WAR, that's all the warning you get.

That's an interesting example. In the 19th-century African adventure novel _Allen Quatermain_, the main characters have an adventure along the way where they have to rescue a little girl (the daughter of missionaries) from bloodthirsty Masai. The Masai have the girl in a kraal (a sort of fenced area) and are sleeping off a feast of stolen cattle after telling her parents they are going to kill her at dawn unless one of the white men they have been following is delivered to them to be tortured to death. So the white men, including her father, get together a very inferior force, including various loyal Africans, and go out to attack the Masai just before they wake up at dawn. In order to do so they have to sneak up and kill the guards soundlessly. After it's all over, one of the men says to the other that he didn't like killing the guard he was assigned to, because it "felt like cold-blooded murder." One doesn't get the feeling he loses too much sleep over it. These were really bad guys planning to kill a child, after all. But I thought it was an interesting comment. I often find in literature that same kind of ambivalence toward the need to sneak up on the enemy and kill him.

By the way, I think many of the rules you're discussing also obtained in scuffles that were more or less private armies fighting private scuffles. The feudal system encouraged that kind of fragmentation since your primary loyalty was to your feudal lord. This made "cessation of hostilities" or "helping your country" or whatever more ambiguous.

Sorry, OT, but does anybody know if Maximos, one of the original posters here, still lives & publishes his always interesting opinions?

Daniel Larison, of course, can always be found at "The American Conservative" - but I can't seem to find Maximos anywhere.

Best - Steve

Your point about muddled situations with fragmentary loyalties is very good. The "rules of war" we are more familiar with (as with the GC) obtain much more clearly in the unambiguous situation of nation-states in a declared war, less so in some other situations. They don't obtain in civilian affairs, and rather differently in police actions.

My thought on the sorites problem is as follows. Let us divide direct war combat into 3 cases: (A) the opponents immediate capabilities are relatively comparable, one may have a modest advantage but not so much that the outcome is probable in either direction. Or at least their mutual knowledge does not provide for knowing the probable outcome: so far as they can tell, either side might plausibly at least damage the other side’s capacity to fight. (B) I have the advantage over my opponent, one that is serious and pervasive, so that it is quite likely that I can defeat him and quite unlikely that he can significantly injure me in the process – but not so much an advantage that the outcome, (including my success without taking any injury) – is without reasonable doubt. (C) I have such an overwhelming advantage over my opponent that neither of us can have reasonable doubt that I can completely defeat him and he can do nothing to damage my cause.

In the case of (C), it is clear that I not only may but must give him a chance to surrender (assuming, say, nation-states that have signed the GC, and that he is a soldier in uniform, etc), if there is any time at all available to do so. When I offer it, since it is beyond reasonable doubt that he cannot help his cause at all, in honor he should surrender. It is the only reasonable response. The whole point of taking a prisoner of war instead of killing him is that I don’t have to kill him, now that I have demonstrated that he is unable to help their cause, because he is now morally free to lay down that cause and become a non-combatant. But this assumes he will take the opportunity that reason demands, and choose to lay down his arms and become a non-combatant. The fact that I don’t have to hurt him is tied up in his being morally free to (and obliged to by reason) cease his active hostile status and become a non-combatant, one protected from attack. Until he becomes a non-combatant by his choice to lay down arms, he is a legitimate target of violence.

In (A), of course, that’s just the usual situation of combat and I not only am free to fight, I am obliged to given my status as a soldier.

The question is with (B). If I have enough of an advantage that I realize I am very likely to succeed and he is very likely to not cause me any damage in the process, but HE doesn’t know that, then I am free to offer surrender and point out my advantage to him. But this is a practical gray area: it is true that he may not agree with my having a clear advantage and may think he still has a plausible chance, (and may refuse to surrender with due reason), so also I may not be highly confident of my advantage and that I will escape the unfolding event unscathed. It is allowable that I NOT offer him the opportunity of surrender, and just go forward. This “may but not must offer surrender" is the very essence of the grayness of the intermediate cases. It’s not that there is a moral quandary here, there is merely a judgment call to be made as to which option is probably better, either option is morally licit. It isn't wrong of me to 'err' on the side of caution and not offer surrender, if I estimate the probabilities of being (unnecessarily) gravely injured or killed are significant enough. A green private must weigh those odds differently than a master sergeant.

This also helps take care of the situations where my advantage is quite strong, (perhaps even overwhelming) but there is simply no time available to give the opponent to let him reflect on the circumstances and surrender: If there is no time for him to realize the overwhelming nature of my advantage, there is no practical time to make the offer and have it accepted. So there is no need to: it is not my bloodthirstiness that prevents me, it is the circumstances of combat. It also takes care of the situations where my advantage is only overwhelming due to its suddenness: moments of tactical surprise or preliminary operational success that gives me a moment of great advantage. If I give the opponent time to surrender, that time itself loses me my advantage. (E.G. I have succeeded in getting his sword point off in the completely wrong direction – for the next 0.3 seconds.) In these cases, I have no moral obligation to give an opportunity to surrender, and (depending on how time-sensitive the situation is and how obvious my overwhelming advantage is), I may not even have the moral license to do so, as it could unreasonably endanger my cause if I were to do so. Thus the degree of advantage and the nature of the time-sensitivity determine whether these latter are more like (A) cases or more like (B) cases. But since A cases are cases where I ought to fight and try to take him out, and B cases are cases where I may do so without moral defect, there is again no serious moral quandary in these, merely the difficulty of estimation.

The significant difference between a soldier today and a personal combat similar to the medieval Scene A I laid out is this: in a case of B where I might offer surrender or not because my advantage is significant but not obviously overwhelming, the risk I am taking by giving my opponent time is different. As an individual in a one-off situation, my taking low-ish risk to my own life and health is a risk for evil that I myself will bear if I am mistaken. As a soldier, if the enemy refuses to surrender and then wounds me during the ensuing combat, I am then unavailable to my country to pursue its grave purpose: it is not just I that will bear the evil result, it is many others. There is still a perfectly valid moral analysis to be made in either case, it is just that the different scenarios have different elements that go into the equation: a soldier analyzes risk differently than a civilian individual does.

I also think that this answers to Quatermain's fellow who feels unhappy about slitting the guard's throat. In the circumstance, it is precisely the surprise that gives him the critical advantage that (in other circumstances) would theoretically allow for an offer of surrender. There is no moral room for waking up the guard and offering surrender (they did the right thing), but the reason he feels odd about it is that the situation is similar to a situation where he may or even must offer surrender. The similarity, without reflection, makes one uneasy. There is a general principle that like situations render like conclusions, and it is only with reflection that that one realizes that the critical feature of the situations is indeed not like, but quite divergent.

One of the causes of getting this stuff muddled is, effectively, a change in understanding of how killing in warfare is justified in itself.

Everyone agrees that, as a civilian, killing in self-defense or in defense of someone under your care against an unjust aggressor is justified if there is no less violent way to carry out the defense. However, if there is a sure and workable way to defend yourself short of killing the aggressor, one that get you out of danger and does not expose you to serious risks, you are obliged to take that means instead of killing the guy. This may entail disabling him, or running away, or a combination.

In the last 60 years or so, there has come to be an attempt to lay that model onto both executing criminals and onto what soldiers do in war. It is an explicit part of the "New Natural Law" theory (NNLT), but is also attempted by many others as well: what is common is the notion that the ONLY model of justified killing is that of immediate self-defense in which only a means likely to cause death is sufficient to defend innocent life. In this model, the death is understood to be incidental to the intention, which is to "stop the attack" long enough for the authorities to take over.

The problem with this is that the model just does not work, simply as is, for either the death penalty or for war. In the case of the death penalty, you are allowed (so say the modern types) to kill the murderer if you have determined that he is likely to kill again even in prison and you cannot viably protect the people in prison from danger: this is not immediate self-defense, where the prisoner is right now attacking someone. There are many more philosophical problems with this for execution, but I won't go into them here.

For war, the model is even less workable. As with the immediacy issue above, it's a problem here, only much more so. Immediate self-defense would not permit sneaking up on your opponent at night when he is asleep, or luring them into an ambush.

Much more importantly, the killing has to be done at the individual level, (by soldiers, not simply by "the state") and on soldiers. But the unjust aggression is by the unjust state (or both unjust states), it is not in the will of the soldiers following orders. Except in the rather unusual situation where even the lowly privates know well that their own government is in the wrong for entering the war unjustly, war (and the international rules of war) is carried out in the context of assuming that soldiers in uniform carrying out orders of their duly appointed superiors are acting licitly in trying to bring violence to the opponent. Effectively, the enemy STATE is considered to be the unjust aggressor, but not the individual enemy soldiers in their personal moral status. As a consequence, the enemy soldiers may be killed because they are agents of the enemy state, not because they are PERSONALLY guilty of unjust aggression.

This has important practical considerations. For one thing, unlike the civilian being attacked by a rapist, immediacy of danger is not the deciding factor: in the civilian situation, once you either disable the rapist or get away, you can call the police and get the protection of society from that rapist - get him arrested and put in prison, etc. For another, once you get past the immediate moment of danger, usually that attacker is no longer interested in targeting you. neither of these obtains in war as a soldier: if you merely disable an enemy soldier, say a broken arm, once he heals he will be right back at war trying to kill you, or your brothers-in-arms. Nor can you call on a higher authority to "take over" your defense after that moment. The enemy does not respond to any such earthly authority.

No, you are not allowed to attack and even kill the enemy soldier strictly because he is an immediate unjust aggressor. Once the war has been declared, you are allowed to attack him at any time, even when he is asleep or drunk or weaponless, and even when immediately attacking you is the last thing on his mind - even when aggression is not on his mind. Because it is the enemy STATE that is the real opponent, who is merely present and acting in the person of the enemy soldiers in front of you, you can only reach to "the state" and end its "will to fight" through taking on the enemy soldiers that you attack, your attack's underlying purpose is not to temporarily disable the immediate attack until you can run away or go get help, your underlying purpose is to make it so that these soldiers can in no way advance their unjust state's violent purpose, for good. Because temporarily immobilizing someone (such as with a pain hold, or knocking them out), or injuring them, are reversible, neither of these answer to the need to make them completely useless for the whole war however long that might last. Only two things can even plausibly do that: you can kill the soldier, or you can catch them at so great a disadvantage and threat of immediate death that they (lawfully) give up the war, i.e. give their parole. Bot of these DEPEND on it being licit to kill them, not just "defend yourself against an immediate unjust attack". In war, the death of the enemy soldiers is not an incidental side effect of bringing sufficient violence to bear that they are unable to continue (i.e. unable to be an immediate threat), for that level only lasts a short time with respect to any given soldiers. In order for the enemy STATE to give up the will to fight, many of its soldiers must be taken away from it either by death or by capture - and the logic of capture depends on the (lawful) threat of immediate death. Killing the enemy soldiers is actually intended, not an unintended side effect of using large amounts of force.

Yes, I've noticed the "new natural law" types trying to apply individual rules of engagement and double effect to rules of engagement in war, and of course it doesn't work. Since you bring up the death penalty, it also results in completely *ignoring* the issue of retributivism in the death penalty, which is explicit in the Bible.

One interesting difficulty concerns citizens within Country A who turn to a "war mentality" perhaps when their own country is at war with Country B. In other words, traitors to Country A. Bonhoeffer may have been involved in plots to assassinate Hitler, the head of his country. For this he is generally considered a hero rather than a traitor. Under all ordinary circumstances, though, plotting to kill the head of your country is conspiring to commit murder. What made it okay here? Just that Hitler was so bad? The fact that Germany was at war, and therefore that the would-be assassins had effectively made themselves part of the countries at war with Germany? Something else?

I think that Bonhoeffer is considered a hero here in the US, but I will bet it's a LOT more ambivalent in Germany.

The facts of life in a country at war are that the leaders responsible have decided war is the option they are going to pursue. In modern and western countries, this entails some sort of making a case for war, i.e. that it is "right". if the leaders' case is based on concepts that are morally repugnant, or philosophically unsound even apart from data and empirical considerations, presumably ordinary citizens could realize that there is no just cause for their country to go to war. If they were morally certain that their leaders had no just cause for war, and that the leaders had not made the decision from merely being honestly mistaken about the matter but from bad will, those citizens would be not only permitted but obliged not to participate in it.

Which is still a far cry from trying to kill the leader(s).

Nevertheless, I would assume that even more egregious circumstances that would make it just to revolt against the government - which we generally have said is possible - would also be circumstances in which it is just to declare war on the government, to attack it, and overthrow it. Including attacking its leaders insofar as they could be legitimate targets of violence at all, or to put them under military constraint insofar as they are true civilians and will concede defeat.

Now, we usually say that civilians cannot be targeted in war, but there are some really funky aspects of that which are not intuitively obvious. For example, in our country (but not in all democracies) the President is also the Commander in Chief. He is properly saluted by soldiers. One who commands soldiers as commander in chief is not exempt from being targeted, any more than any other commander in the army. In the President, we have the odd situation of a supposed civilian who is also the commander. Because he has many duties that are not military duties, he is not a member of the military, he is a civilian. But insofar as in his person resides the chief military commander, he may be justly targeted in military operations: targeting him would be a legitimate military operation.

That's my opinion, anyway. There might be some legal opinions out there that speak to the matter, I don't know. (There is a legal opinion that the President is not eligible for military pay or financial VA benefits. I don't think that speaks to the point.)

But there's something really funky about small bands of revolutionaries "declaring war" on anybody. They are a paradigm case of non-state actors themselves, so it becomes kind of ambiguous what it even means for them to declare war or be at war.

A real-world example that I have wondered about is the killing of Osama bin Laden. Was it murder? We can't know for sure, of course, because we don't know exactly what happened, but it seems likely to me that it was.

Some relevant questions: Were the circumstances such that it would have been reasonable to offer surrender? Was that offer made? Were the SEALS instructed to offer surrender if circumstances were amenable to that, or were they instructed to kill bin Laden, period? Was bin Laden armed? Did the SEALS actually consider him to be a threat? Do the rules of war apply here, or some other rules? Although the US has tried to define the “battlefield” in such a way as to include every place on earth, should that term really apply to a man's bedroom in a country against which the US has not declared war? And so on...

But there's something really funky about small bands of revolutionaries "declaring war" on anybody. They are a paradigm case of non-state actors themselves, so it becomes kind of ambiguous what it even means for them to declare war or be at war.

That's quite true. But just to that extent, the rules that we have concepts comfortable with for states at war just won't apply in those cases, or not without lots of adjustments.

Although the US has tried to define the “battlefield” in such a way as to include every place on earth, should that term really apply to a man's bedroom in a country against which the US has not declared war? And so on...

Jim, you have a fine set of questions. Regarding the last, I would argue that with regard to groups (like terrorists) who announce themselves to be outside of norms of international law and who embrace "asymmetric war", declaring them to be on a "battlefield" in every location they can be found is perfectly legitimate.

I don't know what the SEALs were told for ROE going after bin Laden, but I would doubt that they explicitly said to kill him no matter what. If I am right, then there was at least the theoretical possibility that he could have been taken alive. I am glad he wasn't, personally, because I cannot conceive of any place within the reach of the United States influence where he could have received a trial that one could prove was not biased, and so there would have been idiotic debates about a "rigged" trial forevermore.

There is a history of legal battlefield "summary" execution, for certain difficult situations (spies?, behind enemy lines?). I don't know the ins and outs of them, and so I hesitate to say whether the standards might have covered a bin Laden situation. But I believe that in general they dealt with people whose actions were directly contrary to the "law of nations", i.e. the norms of appropriate actions at war, in battlefield conditions which constrain against arresting them for future trial. But, as far as I know, (which is really very little), the usual sense of when it is justified is due to actions that the offender is taking there, not actions that they took some time in the past.

On the other hand, once someone declares that they consider the norms of the laws of nations to be irrelevant, how could you accept their surrender without unjustifiably taking a risk that they will become violent again at a moment of their choosing? I suppose if you knew they were unconscious, but how do you check that without taking a risk? These are the kinds of considerations that push us to formulate "shoot on sight" decisions.

I admit that I have always had a sneaking liking for assassination of evil leaders, in which case killing Bin Laden was a great idea. And a fortiori for terrorists who act outside the norms of international war and who target innocents. They are guilty as sin. Kill 'em. If it would be just to execute Bin Laden (which it certainly would be) having SEALS hunt him down and kill him seems obviously just as well.

Killing the wicked leader is efficient and can (depending on circumstances) help to reduce bloodshed even among his own followers and people.

I have argued for a long time that the presumption that "we do not target the leaders" of countries needs to be re-thought in a much more careful analysis of the moral and practical realities.

As a moral reality, unlike the soldiers in the trenches, when a country goes to war, (and since normally at least one of the two opponents goes to war unjustly), the top dog in a political system often is personally responsible for sending the country into an unjust war. The presumption of moral innocence that we ascribe to the soldiers is inapplicable.

As a practical approach, it is often claimed that it is not right to target the leadership, for two reasons: (1) because then they will target ours; and (2) because then the hopes of achieving a cessation of hostilities (because there is nobody to take over and order cessation) and eventually a just peace are greatly reduced. But both of these theses are very debatable.

(1) A great portion of the overall strategy of operating a defensive war is to keep our fundamental "command and control" apparatus intact, so we can go on directing efforts against the enemy. Once the enemy takes out the central control, they can much more easily go about defeating the elements "in detail", a vastly easier task. For this reason, it is usually assumed that once central command goes down, the war cannot be won, and the capture of central command is taken to be if not a completely deciding event causing surrender, then nearly so. but by that very fact, taking out central control often means not having to defeat all of the rest of the armed forces, in detail, which can shorten the war and minimize overall damage to the country. Going after and taking out central control can be a humanitarian way of waging war.

(2) As we have seen especially in the case of despots, they often have very strong incentives to continue waging war even beyond any rational hope of success. One reason for this is that they have committed atrocities and will be put to death for such crimes, or because once the population they have oppressed with fear no longer fears them, the people will rise up and eradicate the oppressors. So, at least in the case of some leaders, taking them out of the equation is far more likely to lead to a quick cessation of hostilities. Furthermore, the quicker the war is ended, the less the damage the country as a whole suffers, which is more likely to lead the defeated people to accept their fate and the conditions imposed on them in surrender. Even non-despots exhibit an inability to let go of a war when all reason indicates they should.

It comes down to whether the main leaders are morally legitimate targets of military force and violence. My answers to (1) and (2) above are irrelevant if targeting them is morally wrong even if the consequences are favorable - we hold no truck with consequentialism. I have an opinion about it, but which I am not totally confident of, that if the underlying principle that makes targeting the enemy's soldiers OK is that they are primary instruments of the country's intent to wage war, then the leaders who are responsible for the intent to wage war cannot be excluded from the same response by us, which is to impose such violence as will cause the enemy to reverse their intention to wage war. In effect, this would mean that the primary task of waging war is directed at the enemy leadership, and only secondarily at the enemy soldiers.

I am open to counter-offers. Debate?

A further point is that someone like Osama bin Laden is a warlord rather than a President or other general "leader" of a country or group. While there is *some* justification for thinking of the president of a constitutional Republic as a civilian (though you have cast legitimate doubt upon this presumption), a leader of a terrorist organization is *obviously not* a civilian non-combatant.

There is some precedent for dealing with non-state actors in war, it is not nearly developed enough and thought-through enough to serve for dealing with modern asymmetric warfare and all the nuances.

Just for instance, there needs to be much more development of ideas to distinguish morally and pragmatically between citizens just taking up arms to defend their homes and neighborhoods, ad-hoc organized groups of neighbors and towns acting without any formally recognized status (from higher up), i.e. guerrillas acting while "ownership" of the territory is still not settled, insurgents and saboteurs acting while a territory is occupied but while the war is still ongoing, and imported fighters (like American "advisors"), and out-and-out terrorists, as well as how to distinguish between pure acting under duress vs. so-called "collaboration" vs. true treason. And yes, in doing so we must arrive at the right norms for saying that a decision-maker in a terrorist organization does not fall under the kinds of protections we grant civilian because they are non-combatants.

I also think that finding the right analytical model to address terrorists will also show that we do not have to treat fighting them as if we were on an ordinary military battlefield (in terms of ius in bello rules), nor treat captured ones as (nation-state) prisoners of war. If the current ius in bello norms were developed in order to deal with nations going to war with nations, they cannot be expected to address dealing with terrorists.

Steve -- I'm pretty sure Maximos has given up blogging almost entirely. I've seen the very rare comment from him on Dreher's blog but that's it. I used to exchange emails with him from time to time but I've gotten no response from my last couple attempts.

Yesterday I read a long exchange, here,


about the American soldier's training for what is OK and what is not OK for POW behavior. The upshot is that once you are captured and a POW, you are not an "active hostile", and you therefore cannot kill enemy soldiers, even to escape. Nor may you kill civilians (even if they are going to prevent you from escaping, by sounding the alert). You may not commit violent crimes. Nor may you commit crimes that do not materially aid your escape such as stealing something that helps you (the comments mistake this: the GC clearly exempts crimes that aid your escape from being punishable). Once you achieve a return to your Force, you are no longer a POW and may then participate in hostilities again. The enemy may use lethal force to stop your escape, but only after a warning (such as a shout "stop or I'll shoot").

This is pretty close to just what the GC says or implies. But the whole idea is made topsy turvy by the CoC rule number one, that you must never surrender. If you have not surrendered, you never leave your hostile status. You remain an active hostile so long as you are not willing to surrender. It is impossible to be reduced to a not-active-hostile without your cooperation, even if it is compelled cooperation at gunpoint. Forget the legal niceties, just consider the moral picture: a hostile in the moral sense is someone who intends to do you violent harm in whatever opportunity presents itself. A soldier "captured" by the enemy, who refuses to surrender, still intends to do violent harm to the enemy in whatever opportunity presents itself, he just has limited opportunity. The intention to harm remains. The only way that he ceases to be a "hostile" in the moral sense is by his choosing to give up that intention. The CoC makes no sense in the context of the GC, or of any older chivalrous sense of surrender.

Now, the logic of the full provisions of the GC, itself, could only make sense if by surrendering you were giving what amounts to a LIMITED parole, such as "I will consent to a temporary intention to no longer harm you" equivalent to a temporary cessation of hostile intent. And that could even work (sort of, practically, though not really), morally and logically, if the temporary period were, say, for a fixed and definite period of time known by both parties: a day, a week, a year. But what that's not how it is set up. The period is the indefinite "until I decide that I might be able to escape". Indeed, one of the explicit reasons prisoners (even in WWII) attempted to escape was that they knew the ensuing hunt would use up valuable military and civilian resources that would otherwise go toward the war effort: the INTENT to escape INCLUDED AN INTENT TO HARM. And so the surrender with an open-ended "until I escape" includes, morally, an implicit but completely accepted sense that "I retain the intent to harm you if I can by escaping". So, the act of surrendering, as envisioned by the GC, does NOT properly entail a soldier agreeing to end his active intent to harm, it is not properly parole, and it is not really logically coherent.

The "sort of" pragmatic kind of sense it might make if the surrender were explicitly made for a stated temporary period, say, a year, at first looks like it could make sense: the soldier agrees that for a period of one year he will take no actions that will harm or are intended to harm the detaining country. This includes no attempt to escape (nor even working toward it). However, take a look at what happens at the end of the period: now the enemy knows that the prisoner INTENDS harm, in whatever opportunity offers itself, including escape. This means that treating him "with kid gloves", (which is the treatment given POWs) no longer makes sense: he is an ACTIVE hostile. Now, you have to beef up the prison with a lot more guard force, you have to effectively handle every POW as if he intends to attack AT EVERY MOMENT, because, for example, he might decide that if he and 3 of his friends can take out 8 guards, (before being killed in the attempt) this is an acceptable exchange rate for helping his country and harming the enemy. (Nor would it make sense to require of the detaining country to warn the escapee before shooting him, he is an ACTIVE hostile by both sides' agreement.) You would have to handcuff him and chain his feet even to walk within 10 feet of him without worrying about being attacked.
In effect, every such prisoner is merely a disadvantaged soldier in a poor tactical position, not a POW at all, for "POW" means "not an active hostile". You could put a gun in in his face and say "surrender again, or we'll kill you", but that's the only way you can ease down to the less restrictive treatment of paroled POWs. So, the temporary parole with an explicit time limit doesn't really work either.

The only real sense of surrender that works is that of giving parole, and giving parole MUST mean "until hostilities are concluded between our countries, or until we voluntarily repatriate you (usually for wounded soldiers)." By conventions (such as the GC but designed better), you can mandate that a shipwrecked sailor rescued from the sea, a downed airman, and a wounded soldier who is unconscious has thereby given surrender (because he otherwise could have been killed outright), and his ACTUAL consent is not first necessary (due to the legal force of the Convention), because his country's own law mandates that he actually consent to surrender when he is in that situation, he is both morally and legally obligated to give his parole.

“I admit that I have always had a sneaking liking for assassination of evil leaders ...”.

Definitions of the word “assassination” typically indicate that it is a type of murder. Maybe I'm being simplistic, but shouldn't Christians should have a problem with committing murder or supporting murder?

Obviously, I meant it as a descriptive term just including the more neutrally describable aspects. For example, stealth, no attempt to limit the attack to a time when the person is at that moment committing an aggressive act, willingness to kill from afar (by a sniper, for example), and so forth.

There is some precedent for dealing with non-state actors in war, it is not nearly developed enough and thought-through enough to serve for dealing with modern asymmetric warfare and all the nuances.

I've suspected for a while that the laws against pirates/piracy were modified and developed over time to apply to international terrorists. In both cases they are legally treated as enemies of humanity, and summary execution is allowed without (as far as I can tell) any requirement to demand surrender. It also helps explain why there is such strong resistance to bringing them onto US soil, because then the very limited legal protections that pirates are afforded in international law would apply.

As to your original thought experiment, you and Lydia already touched on the chivalrous notion of a fair fight. In swordplay and perhaps less so in gun fights, I would also say there is a related element of having a similar weapon in hand before delivering a lethal strike. It only has to be in hand though, it doesn't have to be aimed in the right direction. It has been a long time since I watched Westerns, but if the Hero knows the Villain is reaching for an empty holster it would seem dishonorable to kill him.

Finally, in regards to the Code of Conduct I agree it is totally contradictory. I'm not sure but they appear to be trying to preserve battlefield chain of command. I mean you normally don't want soldiers to assert an individual ability to surrender because it can disrupt tactics and strategies. It also contributes to the myriad difficulties of prisoner exchanges and other ransoms. On the other hand, the battlefield is usually chaotic so lines of communication are haphazard at best.

It has been a long time since I watched Westerns, but if the Hero knows the Villain is reaching for an empty holster it would seem dishonorable to kill him.

Step2, I agree, and this is what I tried to say above. If the villain really does represent no threat, and you have an overwhelming capacity to take him out without his having any defense against you, then it does indeed seem dishonorable to kill him.

Until you offer surrender, and see if he accepts, at least. If you give him the opportunity and he refuses, you are still left with the fact that you can easily kill him, while he intends to change his severe disadvantage if he can. It comes down to, then, whether you feel that you can place him under physical restraint (like chains or handcuffs - but even handcuffs does not mean he is no danger) so as to incapacitate him without taking undue risks. If you are fairly sure that you cannot, then I don't see much option but to take him out. Maybe you can try to wound him, which would also incapacitate him (usually, I guess). But the underlying reality is that having the overwhelming advantage where you are not at risk presents the opportunity to allow a surrender, but it does not cause a surrender (it is not itself the surrender) and does not ensure that you can take him as a controlled detainee without serious risk.

But, as you imply, all that seems to go out the window for terrorists. Thanks for mentioning the pirates, I had completely forgotten them, and they did not come up in the literature I did in research for this. Interesting lacuna, really.

The history of pirates does seem to provide for summary execution. And because of that, they would not readily surrender even if they had poor chance of success, which meant that even offering surrender was nearly useless, and really, if you are sure you are going to kill the guy anyway, what's the point of offering him surrender? (Except to give him time to compose himself to meet his Maker, I suppose)? But still, pirates and terrorists present nearly the same basic counterpoint to the rules in which surrender makes sense, which is a context in which proposing surrender and accepting surrender will lead to a less frightful outcome than finishing the fight to a death: the one who surrenders is thereby guaranteed to be allowed to live instead of being killed, in return for agreeing to give up his intent to do harm to his opponent. It assumes a context in which both sides have enough incentive to trust the other to honor the surrender. With pirates and terrorists, they are generally perceived to not honor the rules of surrender, nor any other moral standards for the most part.

I'm not sure but they appear to be trying to preserve battlefield chain of command. I mean you normally don't want soldiers to assert an individual ability to surrender because it can disrupt tactics and strategies.

So far as I saw (which is limited, to be sure) soldiers viewed the CoC (which dates from after the Korean War) as at least "sensible" when we are going to war with entities that are not going to honor the CoC, which has been mostly true since the 1950s. Maybe the original idea was to maintain the chain of command, but it seems unlikely that taking the individual "initiative" to surrender away from private soldiers would have been helpful in WWII, so why would it have been considered helpful generally? As you say, the chaos of battlefield conditions would seem to make it difficult maintain the level of small-unit oversight to know when each soldier, fire team or squad should surrender. Did the army experience rashes of surrenders in unnecessary situations?

Definitions of the word “assassination” typically indicate that it is a type of murder. Maybe I'm being simplistic, but shouldn't Christians should have a problem with committing murder or supporting murder?

Jim, you raise a good point. In normal discussion, "assassination" is taken to be a species of murder - i.e. murder of a public figure, not for personal reasons but for something related to his public persona. Usually it is tied to murdering someone with an office of authority.

However, I took Lydia's use of it the way she explains: yes, killing of the public figure in office, but not necessarily murder because maybe he is a legitimate military target?

Obviously, my example of the president being a military target is one case of that. But many people have asked whether political leaders in general can be legitimate targets for military attacks. My comment of July 1, 2017 10:45 AM shows a pretty good reason (well, I think so, anyway), why the leaders actually responsible for choosing to go to war, or for directing the country to go to war, on principle cannot be excluded from being legitimate military targets. Similarly, so goes the argument any terrorist (or pirate) who has ordered attacks in the past (or, I would say, is personally complicit in attacks by conspiracy), even if he has never been in any sense a part of any "military" campaign, places himself in harm's way, making himself a legitimate target. Yes, that poses an issue for civil rights, but that issue has to be addressed whether you intend to "assassinate" through covert means or go openly in a military offensive: either way you don't declare war just before your attack.

The more troubling case - as Lydia indicates - is targeting the leadership of your own country, when you decide that morality demands that you must rebel. And whether one can (or should) attempt to do it covertly or openly.

Okay, how about this: You are caring for a frail, elderly man whose mind happens to be a potential WMD which paralyzes everyone in the vicinity when he has a seizure. You are being chased by a small army of goons whose sole purpose is to kill the old man and capture a little girl who is also in your care. You leave the old man in a hotel room to run some errands and come back to find that the goons are on top of you, but luckily he has chosen a fortuitous time to have a seizure, so they're all temporarily paralyzed, machine guns frozen in mid-air. Do you seize the day and stab all the goons with your adamantium claws, one by one, as you slowly fight your way towards the old man to give him the injection that will stop the seizure? Or do you decide that would be dishonorable and stop the seizure without killing the goons, thus practically ensuring they will overpower you and carry out their goals?

(I may or may not have come up with this example on my own.)

Obviously, you pick up the seizing man and carry him with you until far enough away to administer the anti-seizure medication. The goons will stay frozen long enough to make a getaway. It helps to have a helicopter.

The Chicken

(I may or may not have come up with this example on my own.)

ME, that may be the best example of an outlandishly insane "situation" I have ever heard. :-) Thanks for sharing. Now, please report to your doctor, I fear your medicine has worn off.

You failed to note whether you are a soldier, the frail elderly man is a known terrorist (that's why he has the WMD), and the goons are soldiers of an enemy with whom you are in a declared war. I select "yes" for all of the above. Therefore, you disarm and disable the goons, tying them up / handcuffs and chains. You then situate the old man in a contraption that will automatically kill him (and smash that WMD brain of his) within 3 seconds of your taking your finger off a deadman switch. Then you administer the anti-seizure med, and demand that he surrender immediately and unconditionally. If he says yes, you have captured him, and you call the doctors to operate on that head of his (hopeful but failed operation that unfortunately kills him being nearly as good as successful operation to remove the WMD). If he says no, you attack him (as the active terrorist that he is) by releasing the switch. All purposes met.

Then you go out and get the girl an ice cream cone.

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