THE PERILS OF AMBIGUITY

A recurring issue in warfare—one that appears in the records of every modern conflict—is how prisoners of war should be dealt with. The summary execution of prisoners is clearly a war crime, as is refusing to accept an enemy’s surrender when he signals his desire to capitulate. In the confusion of battle, however, circumstances are not always so straightforward. To what degree are soldiers required to risk their own lives to capture an enemy who aims to kill them right up to the last moment? And what legal requirements apply to soldiers who face an enemy that has a record of ignoring white flags, for example, or violating other surrender conditions?

Winston Churchill once said that a prisoner of war “is a man who tries to kill you, and having failed to do so, asks that you not kill him.” Under the Geneva Convention, it is a war crime for soldiers either to kill prisoners after capturing them or to refuse to take prisoners altogether and kill everyone they encounter. But in such cases, who should be held accountable? Only the soldiers who committed the killings? Or also the commanders who ordered them to do so, whether explicitly or obliquely? Two American cases