The denial of quarter is prohibited under the customary rules of armed conflict and is considered a war crime under the Rome Statute (see article 8(b)(xii) and article 8(e)(x)). In his book, Kill or Capture: The War on Terror and the Soul of the Obama Presidency, Daniel Klaidman explains that the Obama administration struggled for some time with the question of whether the administration’s targeted killing policy amounts to a denial of quarter. In the same vein, Jeh Johnson, former General Counsel of the Department of Defense, once warned, “We have to be vigilant to avoid a no-quarter, or take-no-prisoner policy.” Despite such calls for restraint, and though the pace of drone strikes has slowed down this year compared to that of 2012, the policy of targeted killing remains intact.

Like most norms of international humanitarian law (IHL), the obligation to give quarter purports to strike a balance between military necessity and humanitarian considerations. First, this obligation protects combatants actively engaged in hostilities from threats of extermination. Conversely, an order to deny quarter communicated in advance of fighting renders a potential offer to surrender void ab initio. Second, the obligation to give quarter shields from attack fighters who are out of combat, either due to sickness, wounds, or shipwreck, or because the fighters have expressed an intention to surrender. The rationale behind this aspect of the rule is that attacks against hors de combat are inhumane and confer little military advantage.

Additionally, the failure to give quarter would render many IHL norms irrelevant. As the ICRC stated in the commentary to article 40 of Additional Protocol I:

It is obvious that if there is no quarter, in other words, no survivors, there will be no wounded to be retrieved and cared for, no shipwrecked persons to be rescued, and no prisoners to respect and treat humanely.

To be sure, the no quarter rule should not be read to include a requirement to offer the enemy an opportunity to surrender or a duty to capture prior to using lethal force. Air missile operations would be impossible to justify under the laws of war if that were the case. Take as an example NATO’s air bombing campaign over Kosovo in 1999, which involved 10,500 strikes launched from approximately 15,000 feet. Very few would suggest that the absence of ground forces rendered operation Allied Force per se illegal because NATO did not capture a single Serbian soldier.

However, State practice places significant weight on taking prisoners as a factor to determine compliance with the obligation to give quarter. In a report (see p. 719) submitted to Congress after the first Persian Gulf War, the U.S. Department of Defense defended the tactic of using armored vehicles to crush or bury dug-in infantry forces on the basis that “[t]he large number of Iraqi prisoners of war [was] evidence of Coalition compliance” with the obligation not to deny quarter to surrendering forces. The Tablada case (see para. 182) also illustrates the point. Petitioners submitted that the Argentinian military had denied quarter by deliberately ignoring an offer to surrender during the recapture of a military base. But the Inter-American Commission on Human Rights dismissed the claim, assisted by the fact that the Argentinian military took survivors after the attack, which “tends to belie any intimation that an order of no quarter was actually given.”

But both the Tablada and the Persian Gulf War cases are inapposite to the determination of whether or not the U.S. drone program violates the rule on no quarter for two reasons: 1) drones cannot capture their targets, and 2) drone operations, at least in non-declared war zones, are not supported by boots on the ground, except for intelligence gathering. Coupled with the fact that IHL does not impose an obligation to employ ground forces, the Obama administration’s preference for killing rather than capturing suspected terrorists does not make the drone program per se illegal under the laws of war.

Adding double-tap strikes to the argument, though, introduces another layer of the issue. In the report, “Living Under Drones,” New York University and Stanford human rights clinics found “significant evidence that the US has repeatedly engaged in a practice sometimes referred to as double tap, in which a targeted strike site is hit multiple times in relatively quick succession.” Double tap strikes have killed fighters already injured in a first strike and have deterred rescuers from assisting them, which may also result in the target’s death. In either case, these strikes violate IHL because the rule on no quarter imposes an obligation to desist from further attacks once a combatant has been placed out of combat. This tactic is not defensible under the law of reprisals or on the basis that the targets are “terrorists”.

Unlike isolated IHL violations committed by undisciplined soldiers on the battlefield, failure to give quarter during wartime has far-reaching implications for everyone involved in the planning and execution of military operations. This may be the reason why the Pentagon’s former chief lawyer advised President Obama to avoid a “take-no-prisoners” policy.

It is unlikely that the drone program will be abolished anytime soon, but ending double-tap strikes would be an important step towards reducing the gap between IHL and the practice of targeted killings. 

More on:  Targeted killings   Drones   Hors de combat   no quarter   IHL