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Yesterday, Evilstan declared war on Ruritania. One of the Ruritanian units, let's call them the 1st Chasseurs manages to encircle a splinter troop of Evilstanian troops from the 2nd Armored Rifle Brigade. Encircled and rounded up, the commander of this group from the 2nd ARB pops a white flag and his troops leave their vehicles, arms raised to surrender. However, it's a trap and they gun down a couple of the 1st Chasseurs in their act of Perfidy. In response, the rest of this group from the 2nd ARB is wiped out. Clearly, the commander from the 2nd ARB had committed a war crime, and the unit was free game, their protection of the white flag removed by the perfidy.

The survivors of the 1st Chasseurs manage to encircle another group of tanks from the 2nd ARB today morning. Apparently, they are just that good. When the commander of this unit pops the white flag after comparable resistance, instead of stopping the fire to receive the POWs in a similar fashion, the soldiers of the 1st Chasseurs only pause long enough to top up their guns with fresh ammunition and then mow down the possibly surrendering soldiers, assuming this too was an act of Perfidy.

However, having not honored the white flag in the second instance and by giving no quarter, have the Ruritanian 1st Chasseurs troops committed a war crime by eliminating the 2nd unit from the Evilstanian 2nd ARB?

notes

Declaring no quarter will be given in itself would breach the rules of war under Article 23 (d) of the 1907 Hague Convention IV - The Laws and Customs of War on Land. Assume no such declaration was given.

Evilstan (Evil + the Slavic end for a country) and Ruritania are fictional countries. They are not real countries. They are not made to mimic any actual operation. All matches and similarities are coincidental. In fact, the two countries can be assumed to be reappearing from this question.

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One of the reasons for the Signatories to the various treaties codifying war crimes. The treatment of POWs, Perfidy, and who qualifies for protections of The Law and Customs of War are found in Geneva III treaties.

First, Perfidy is a war crime, and thus, those that surrender in order to lull opposing forces into a trap are guilty of a war crime.

Where it is unclear is "how far up the chain of command did the orders to commit Perfidy get sent.

In your second case the grounds are a bit fuzzy. First, Geneva III list some requirements that combatants must meet in order to qualify for POW protections. These restrictions are as follows:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance [a uniform or something that allows identification];

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

By committing Pefidy, the 2nd ARB Unit 1 lost their immunity, but even then, the surrender might not have been legit, even if it wasn't a trap.

The reason for this is while the white flag is a protected symbol and is a war crime to misuse, and the orders "No Quarter" cannot be issued, the Geneva conventions are rather mum on the procedure for which a lawful surrender may be performed beyond a ban on perfidy. You can even surrender lawfully without waving the white flag in a literal fashion. With the language lacking, most countries do not look to closely at the nature of a particular surrender. Generally, most countries make no obligation to honor a surrender at the very last minute. In the case of Unit 2, as they put up some decent resistance before they waved the white flag and given Unit 1's previous behavior, the 1st Chasseurs are well within their right to not accept the surrender. Surrender is generally not honored if it's done to save your ass after loosing an engagement (you can not inflict the most damage you can and take no consequences for it by surrendering. If you are going to surrender, do so prior to the last minute.).

The flaw in the premise is that in Order for "No Quarter" to be violated, the standing orders of 1st Chasseurs has to be "Even if you are capable of taking POWs under your present conditions, you may not take POWs." Nothing indicates that under standing orders, 1st Chasseurs was told "take no prisoners", as they were more than willing to do so with Unit 1 the previous day. As they were already engaged in a fire fight with Unit 2, who surrendered only after it became clear they were not going to win the skirmish, combined with Unit 1's prior actions, would be more than enough to justify their refusal to accept the surrender in this moment of time.

At time of writing, there needs to be more specifics about the state of the engagement between 1st Chasseurs and Unit 2 to make a determination if they had a legit lull in fighting and show of sincerity that would have made conditions optimal to accept the surrender of Unit 2. But part of the unspoken enforcement of the Laws and Customs of Warfare is that if you or your comrades in arms violate the terms of the Laws and Customs, you should not be surprised if the opposing forces stop giving you the benefit of the doubt (Because war crimes tribunals are held after the war ends... and are typically prosecuted by the winning side against the actions of the losing side. 1st Chasseurs being prosecuted at all is very dependent on if their side loses the war.).

Edit: The use of the phrase "The Laws and Customs of Warfare" was used because, contrary to popular belief, the Geneva Conventions are not the only treaties that define war crimes, just the one that comes up the most, as it deals with matters related to protections afforded to Combatants and Non-Combatants and who qualifies as one of those two categories. The full body of treaties has treaties that have been enforce in 1675 and as recent as 1997. Most conventions are related to bans on certain types of weapons on the battlefield.

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Assume there were 10 years between the 2 events

Does that answer your question? It doesn’t matter if it’s 10 years or 10 minutes, deliberately killing non-combatants is a war crime no matter how annoyed or upset you are.

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    nothing in the situation makes anyone a non-combattant. The 2nd unit of the 2nd ARB was attempting to surrender, but only had raised the flag at that moment, not yet approached with raised hands.
    – Trish
    Commented Nov 21, 2022 at 9:34
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    By attempting to surrender, a soldier becomes a non-combatant.
    – Dale M
    Commented Nov 21, 2022 at 20:37
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The Geneva Conventions prohibit attacking anyone who has clearly communicated an intent to surrender. Certainly, there is a point at which if perfidy reaches a sufficient level of frequency, then the side committing it will lose the ability to "clearly communicate" an intention to surrender, but it isn't clear just where that point is.

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  • But has the commander of 2nd ARB clearly communicated the will to surrender when the brief pause in gunfire was caused by reloading?
    – Trish
    Commented Nov 21, 2022 at 9:05
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One unit acting one unlawful way is no grounds to assume another unit will be acting the same unlawful way.

Extra caution would be understandable, different, maybe even inhumane treatment would be understandable and maybe reasonable, but an execution will still be a war crime. The same way we treat suspected terrorists a lot different than suspected tax fraudsters. A strip search and single cell for the latter would be weird, while totally approprate for the former. Yet, we do not shoot either.

Now, if it was established as a fact that the whole 2nd ARB was under standing orders to fake a surrender to kill more enemies (lets say their written orders were found in their captured command vehicle) then that would be a more interesting case. But there is no such thing as guilt by association.

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  • the "guilt by association" argument is wonky in Perfidy situations: if 2 soldiers are captured in one go and one of those commits an act of perfidy the death of the other one in the ensuing fighting is not necessarily a war crime.
    – Trish
    Commented Nov 21, 2022 at 9:12
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    I don't see where it's wonky. The fact that the second one got killed in the situation does not establish their guilt.
    – nvoigt
    Commented Nov 21, 2022 at 9:56

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