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I was thinking of a story I wanted to write, but I had a legal question.

It involves a war story, and a group of around 12 soldiers. Members of a regular armed force, with the authority of the head of state legally behind them, have taken a position in an armed conflict and have in the process captured some of their enemies, who haven't actually said they gave up nor did they raise their hands but were physically overpowered. Those enemies are not part of another country, but are members of a designated terrorist group – some of their members having been convicted of it, even having had their death sentences commuted years before.

The allies of those enemies are coming back and are clearly going to take the position back, imminently, within a minute or two, and there is only room for the soldiers to retreat back to safety.

One of the soldiers asks their commander if it would be a good idea to kill the ones they captured before they leave, given that they can't take the captives (who are about to rejoin their enemies) with them. Does the commander have the right to do this?

I am planning to add a dialogue with one of the soldiers who is brilliant and is legally trained, and I want to know what this advisor should legally say in accordance with the laws of war in effect today.

If it matters which conventions have been ratified, I would like to know which ones are relevant.

The municipal laws of a country aren't important; the story will invent that later. I am interested in what the international treaties would say on this.


OP comments added for clarification and posterity:

This is more like a far future event, hundreds of years from now, with a long era of peace, and this is basically completely ad hoc to create a militia, as for why nobody remembers precisely what is in these conventions, not even the king. Don't worry that this is a real scenario. 

This isn't really like an army of any real country. The idea I had was futuristic and a little magical in the literal sense, although then again, Thor is noted for having said in the Avengers movies with advanced technology being indistinguishable from magic. It would be centuries, maybe over a thousand years, into the future where war has been essentially absolute for that time. This scenario involves no vehicles, little prep (like maybe 5 minutes max for capturing and being forced out), no fortifications, no evac this way, just running or flying the way that Iron Man flies. 

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    $\begingroup$ Does this answer your question? Can military necessity override POW rights? $\endgroup$
    – Rick
    Jun 14 at 6:42
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    $\begingroup$ Are the terrorists organized, uniformed, and taking orders from a superior military officer? The Geneva Convention does not protect those who take up arms while out of uniform or while not wearing a symbol that can be recognized from a distance or spies or special ops who are not uniformed while carrying out their duty. $\endgroup$
    – hszmv
    Jun 14 at 12:31
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    $\begingroup$ Since you have quarreled with both answers based on contemporary law conflict with your story and shouldn't apply to your 1000 year distant fictional world, it's off-topic here but We have a whole stack specifically for fictional-world questions just like yours, and I asked a mod to move it there. $\endgroup$ Jun 15 at 6:12
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    $\begingroup$ Well, $\rightarrow$very$\leftarrow$ obviously, the laws of war which will prevail to that futuristic situation hundreds of years from now are the laws of war which will be in force hundreds of years from now. We don't know them, because they are in the far future. One thing is certain: our current laws of war will not apply hundreds of years from now. Consider the difference between the laws of war applied (by some belligerents) in WW2 and the laws of war as they were understood and practiced in the 30 Years' War three hundred years previously. $\endgroup$
    – AlexP
    Jun 15 at 14:13
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    $\begingroup$ This seems like its something the author of the story should decide for themselves. Its a plot question, not really world building. Given that you're talking hundreds of years into the future, the laws that are followed are entirely up to the author. $\endgroup$ Jun 15 at 19:38

3 Answers 3

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The relevant Geneva Convention talks about persons who have

fallen into the power of the enemy

The convention explicitly prohibits

the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

So while it may be possible to haul those presumed 'terrorists' before a court, the killing you describe would clearly be an illegal order. Military forces have issued and obeyed illegal orders, time and again, but they are not supposed to do that.

The officer would be expected to know that, the other character just has to remind her.


Follow-up, because this has been migrated to Worldbuilding:

  • Good troops do not argue with their commanding officer when the bullets fly. They do their best to understand the commander's intent and to make it happen.
  • Good staff do provide options while their commanding officer is planning. They evaluate them from as many angles as they can, to advise on their strengths and weaknesses, and they argue with each other while they do that. "If I were the enemy, my countermove would be ..."

So either there is a bad apple, undermining the chain of command when the leader has made a decision, or they have a bit of breathing space and they leader is running through an abbreviated planning session with an improvised staff. Even a minute to talk through a plan can make a difference.

In the former case, the officer says "because I say so" and all good soldiers should obey. In the latter case, what is the question? I cannot see the officer asking "I want/I do not want to shoot the prisoners, find me a legal loophole to do what I want." It might be something like "we need to deny as much of these supplies to the enemy as we can with the demolitions at hand, what should we blow and in which order?"

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    $\begingroup$ @R-Obsessive, any soldier, especially any officer, should learn the basics of international law, and this is really basic. As to escaping prisoners, (a) domestic law enforcement has different rules and (b) these people are not trying to break out. $\endgroup$
    – o.m.
    Jun 14 at 10:31
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    $\begingroup$ In addition to this (good) answer, I vaguely remember the convention disallows prosecuting soldiers just for being soldiers. (Article 87 possibly?) For instance, Ukraine could validly prosecute Vadim Yevgenievich Shishimarin for war crimes, but only because a Ukrainian soldier doing the same stuff (shooting an unarmed civilian) would be similarly prosecuted by Ukrainian courts, not just because they did soldier stuff contrary to Ukraine's interests. $\endgroup$
    – KFK
    Jun 14 at 11:52
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    $\begingroup$ You link to and quote GC3 Art4 but it's very possible the captives would not be defined as POWs (e.g. Art4.A.6 mentions civilians taking arms against an invader "provided they carry arms openly and respect the laws and customs of war"). It's a red herring anyways, Art3 that you quote doesn't apply to POWs, it applies to "persons taking no active part in the hostilities", incuding "those placed 'hors de combat' by detention", which would definitely apply. $\endgroup$ Jun 14 at 13:04
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    $\begingroup$ @hszmv But the detainees are not trying to escape. It's not their fault that their comrades are coming to their rescue. Executing a prisoner - POW or criminal - just because detaining them is no longer convenient is a crime. $\endgroup$
    – Philipp
    Jun 14 at 15:59
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    $\begingroup$ @R-Obsessive TL;DR: The officer giving the illegal order commits a war crime. The soldier obeying an illegal order commits a war crime. $\endgroup$
    – Trish
    Jun 14 at 18:40
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This was written when the question was on Law StackExchange and pertains to contemporary law. However, human rights law tends to run hand in hand with a technological society, because first, it's hard to get humans to innovate when they're treated like meat... and second, tech components like petroleum, lithium, rare earths, (or for that matter tea) tend to only be accessible when you have a world peacefully trading under rule of law. Yes, there's aluminum and lithium in your garden soil, but it is much more costly to extract than the rich ore bodies in exotic places in the world.

The soldiers blew it. Now they eat the loss.

They should have pushed the captives to the rear immediately when they had the chance, especially if they are high value. Now it's too late.

If they never had the chance, then they never really held the position, they were just raiding.

Once the enemies are rendered unable to actively fight, they are hors de combat and you cannot harm them under civilized laws. I mean, you could arrange for an "accident" like unshackling them and letting them overpower one of you and reach for some weapons you carelessly left lying around. At that point you could shoot them. However, not the best idea. If you follow Ryan MacBeth on social media, one thing he says, when you go to combat, you're gonna be haunted by the experience for the rest of your life even if you do everything right. If you did stuff that was wrong, it will be much worse.

However, you may have a narrative gold mine

One very interesting option would be give the prisoners some seats in the transport by leaving some of your soldiers behind. And then, they "exfil" (leave the area) by other means.

It has the merit that the enemy would never conceive of you doing that, because if they're experienced at fighting your army, they're familiar with your very strong "Leave No Man Behind" morality, and may regularly exploit it.

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  • $\begingroup$ This isn´t really like an army of any real country. The idea I had was futuristic and a little magical in the literal sense, although then again, Thor is noted for having said in the Avengers movies with advanced technology being indistinguishable from magic. It would be centuries, maybe over a thousand years, into the future where war has been essentially absolute for that time. This scenario involves no vehicles, little prep (like maybe 5 minutes max for capturing and being forced out), no fortifications, no evac this way, just running or flying the way that Iron Man flies. $\endgroup$
    – R-Obsessive
    Jun 15 at 2:50
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    $\begingroup$ @R-Obsessive well you didn't state any of that in the question, and having just edited my answer to remove any sign of "era", it seems like the edits I made are very minor. You seem to be taking offense that I used the word "humvee", and in the other answer you seem upset with them giving you a reality check too. If you're writing fiction and are going to do anything you want, why torture us lol. $\endgroup$ Jun 15 at 6:07
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International Law Does Not Apply

Those enemies are not part of another country

Unless an International Organization like the UN recognizes the terrorist group as a sovereign nation, then the Geneva Convention, and most other international treaties do not apply. POW laws apply to the treatment of Prisoners of War as fought between countries who have by treaty agreed not to mistreat each other's POWs.

But since this is an internal conflict, the only laws you need to worry about are at the national level, and different countries would treat this sort of behavior very differently. In many parts of Asia or South/Central America, there would likely be little-to-no consequence. In North America or Europe, there tends to be a lot more red tape when it comes to restraining and then killing your own citizens. But even some Westernized states offer very little protection to someone once they've been declared a terrorist, because that means that they have been declared enemy combatants and have no citizenship left to fall back on when it comes to protection of thier rights as POWs; so, a prosecution would have a had time finding jurisdiction to actually punish the soldiers on, even if they found the act morally reprehensible.

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