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Hors de combat is used in Common Article 3 of the 1949 Geneva Conventions 255 and hasbeen defined in Article 41 of AP I. 2565.10.2 Persons in the Power of an Adverse Party. Persons in the power of an adverseparty include all persons detained by an adverse party, such as POWs, unprivileged belligerents,retained personnel, and civilian internees. As with other categories of persons hors de combat,detainees must refrain from hostile acts or attempts to escape in order to be considered hors decombat. 2575.10.3 Persons Who Have Surrendered. Persons who are not in custody but who havesurrendered are hors de combat and may not be made the object of attack. 258 In order to make aperson hors de combat, the surrender must be (1) genuine; (2) clear and unconditional; and (3)under circumstances where it is feasible for the opposing party to accept the surrender. 2595.10.3.1 Genuine. The offer to surrender must be genuine. In addition to beinglegally ineffective, feigning the intent to surrender can constitute perfidy. 2605.10.3.2 Clear and Unconditional. The offer to surrender must be clear andunconditional.Any arms being carried should be laid down. All hostile acts or resistance, ormanifestations of hostile intent, including efforts to escape or to destroy items, documents, orequipment to prevent their capture by the enemy, would need to cease immediately for the offerto be clear and unconditional. Raising one’s hands above one’s head to show that one is not255 GWS art. 3(1) (requiring humane treatment for “[p]ersons taking no active part in the hostilities, includingmembers of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds,detention, or any other cause”); GWS-SEA art. 3(1) (same); GPW art. 3(1) (same); GC art. 3(1) (same).256 AP I art. 41(2) (“A person is hors de combat if: (a) He is in the power of an adverse Party; (b) He clearlyexpresses an intention to surrender; or (c) He has been rendered unconscious or is otherwise incapacitated bywounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstainsfrom any hostile act and does not attempt to escape.”).257 Consider AP I art. 41(2) (“A person is hors de combat if: (a) He is in the power of an adverse Party; … providedthat in any of these cases he abstains from any hostile act and does not attempt to escape.”).258 HAGUE IV REG. art. 23(c) (it is especially forbidden “[t]o kill or wound an enemy who, having laid down hisarms, or having no longer means of defence, has surrendered at discretion;”). Consider AP I art. 41(2) (“A person ishors de combat if: … (b) He clearly expresses an intention to surrender; … provided that in any of these cases heabstains from any hostile act and does not attempt to escape.”).259 Harold Hongju Koh, Legal Adviser, Department of State, The Lawfulness of the U.S. Operation Against Osamabin Laden, May 19, 2011, 2011 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 558-59 (“Finally,consistent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture binLaden if he had surrendered in a way that they could safely accept. The laws of armed conflict require acceptanceof a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposingforce, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But wherethat is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstancespresented here.”).260 Refer to § 5.22.3 (Examples of Killing or Wounding by Resort to Perfidy).233