## Law Of War Deskbook International And Operational Law Department



The United States Army Judge Advocate General's Legal Center and School
Charlottesville, VA
2011

## International Law

# The Judge Advocate General's Legal Center And School, U.S. Army Charlottesville, Virginia Law Of War Deskbook

Authors

LTC Jeff A. Bovarnick, JA, USA


LtCol(Sel.) J. Jeremy Marsh, USAF

MAJ Gregory S. Musselman, JA, USA

LCDR John B. Reese, JA, USN

MAJ Shane R. Reeves, JA, USA


MAJ Robert E. Barnsby, JA, USA

MAJ Sean M. Condron, JA, USA

Maj Andrew D. Gillman, JA, USAF

Capt Iain Pedden, JA, USMC
All of the faculty who have served with and before us and contributed to the literature in the field of the Law of War



Editor MAJ Gregory S. Musselman


Technical Support Ms. Terri Thorne
Mr. Gabriel Park

2011

## Preface

This Law of War Deskbook is intended to replace, in a single bound volume, similar individual outlines that had been distributed as part of the Judge Advocate Officer Graduate and Basic Courses and the Operational Law of War Course.  Together with the Operational Law Handbook and Law of War Documentary Supplement, these three volumes represent the range of international and operational law subjects taught to military judge advocates.  These outlines, while extensive, make no pretence of comprehensively covering this complex area of law.  Our audience is the beginning and intermediate level practitioner; our hope is that this material will provide a solid foundation upon which further study may be built.


The proponent of this publication is the International and Operational Law Department, The Judge Advocate General's Legal Center and School (TJAGLCS).  Send comments and suggestions to TJAGLCS, International and Operational Law Department, 600 Massie Road, Charlottesville, VA 22903-1781. Our phone number is (434) 971-3370; our administrative assistant will connect you with the author for the particular chapter. This Deskbook is not a substitute for official publications.  Similarly, it should not be considered to espouse an "official" position of the U.S. Army, Department of Defense, or U.S. Government. While every effort has been made to ensure that the material contained herein is current and correct, it should be remembered that these are merely a collection of teaching outlines, collected, bound, and distributed as a matter of instructional convenience, intended only to introduce students to the law and point them to primary sources of that law.  Accordingly, the only proper citation to a substantive provision of this Deskbook should be for the limited proposition of how the Army JAG School teaches its judge advocate students.



## Law Of War Deskbook Table Of Contents


References
iv
Abbreviations
vi

Introduction to Public International Law
1
History of the Law of War
7
Framework of the Law of War
19

Legal Basis for the Use of Force
31
GC I: Wounded and Sick in the Field
43
GC III: Prisoners of War
71
GC IV: Civilians on the Battlefield
101
GC IV: Occupation and Post-Conflict Governance
113
Means and Methods of Warfare
139
War Crimes and Command Responsibility
179

Human Rights
205
221
Comparative Law

Index
257


## References

This Deskbook is intended as a teaching tool, not as a collection of law review articles.  The references which most chapters cite are common, so to avoid undue repetition, they are cited only here in full. The Short Version citation will generally be used in the chapters.  Those references which are reprinted in the Law of War Documentary Supplement are noted.


Short Version
Citation
Doc
Supp?
X
HR
Regulations Concerning the Laws and Customs of War on Land,
annexed to Hague Convention ( IV) Respecting the Laws and
Customs of War on Land, Oct. 18, 1907, T.S. 539 .
X
GC I
Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST. 3114, T.I.A.S. 3362, 75 U.N.T.S. 31.
X
GC II
Geneva Convention for the Amelioration of the Condition of
Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST. 3217, T.I.A.S. 3363, 75 U.N.T.S. 85.
X
GC III
Geneva Convention, Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135.
X
GC IV
Geneva Convention, Relative to the Treatment of Civilian Persons
in Time of War, Aug. 12, 1949, 6 UST. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287.
X
AP I
Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of International Armed
Conflicts, June 8, 1977, 1125 U.N.T.S. 3.
X
AP II
Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609.
X
AP III
Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Adoption of an Additional Distinctive Emblem, Dec. 8, 2005.
|                                                                | Short Version                                                    | Citation                                                         |
|----------------------------------------------------------------|------------------------------------------------------------------|------------------------------------------------------------------|
| Doc                                                            |                                                                  |                                                                  |
| Supp?                                                          |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
| GC I Commentary                                                |                                                                  |                                                                  |
| GC II Commentary                                               |                                                                  |                                                                  |
| etc.                                                           |                                                                  |                                                                  |
| I                                                              |                                                                  |                                                                  |
| NTERNATIONAL                                                   |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| OMMITTEE OF THE                                                |                                                                  |                                                                  |
| R                                                              |                                                                  |                                                                  |
| ED                                                             |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| ROSS                                                           |                                                                  |                                                                  |
| , G                                                            |                                                                  |                                                                  |
| ENEVA                                                          |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| ONVENTION                                                      |                                                                  |                                                                  |
| (I)                                                            |                                                                  |                                                                  |
| FOR THE                                                        |                                                                  |                                                                  |
| A                                                              |                                                                  |                                                                  |
| MELIORATION OF THE                                             |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| ONDITION OF                                                    |                                                                  |                                                                  |
| THE                                                            |                                                                  |                                                                  |
| W                                                              |                                                                  |                                                                  |
| OUNDED AND                                                     |                                                                  |                                                                  |
| S                                                              |                                                                  |                                                                  |
| ICK IN                                                         |                                                                  |                                                                  |
| A                                                              |                                                                  |                                                                  |
| RMED                                                           |                                                                  |                                                                  |
| F                                                              |                                                                  |                                                                  |
| ORCES IN THE                                                   |                                                                  |                                                                  |
| F                                                              |                                                                  |                                                                  |
| IELD                                                           |                                                                  |                                                                  |
| :                                                              |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| OMMENTARY                                                      |                                                                  |                                                                  |
| (Jean Pictet gen. ed., 1958).                                  |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
| AP Commentary                                                  | I                                                                |                                                                  |
| NTERNATIONAL                                                   |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| OMMITTEE OF THE                                                |                                                                  |                                                                  |
| R                                                              |                                                                  |                                                                  |
| ED                                                             |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| ROSS                                                           |                                                                  |                                                                  |
| , C                                                            |                                                                  |                                                                  |
| OMMENTARY ON                                                   |                                                                  |                                                                  |
| THE                                                            |                                                                  |                                                                  |
| A                                                              |                                                                  |                                                                  |
| DDITIONAL                                                      |                                                                  |                                                                  |
| P                                                              |                                                                  |                                                                  |
| ROTOCOLS OF                                                    |                                                                  |                                                                  |
| 8 J                                                            |                                                                  |                                                                  |
| UNE                                                            |                                                                  |                                                                  |
| 1977                                                           |                                                                  |                                                                  |
| TO THE                                                         |                                                                  |                                                                  |
| G                                                              |                                                                  |                                                                  |
| ENEVA                                                          |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| ONVENTIONS OF                                                  |                                                                  |                                                                  |
| 12 A                                                           |                                                                  |                                                                  |
| UGUST                                                          |                                                                  |                                                                  |
| 1949 (Yves Sandoz et al. eds., 1987).                          |                                                                  |                                                                  |
| X                                                              | G.BC                                                             | Protocol for the Prohibition of the Use in War of Asphyxiating,  |
| Poisonous, or Other Gases, and of Bacteriological Methods of   |                                                                  |                                                                  |
| Warfare, June 17, 1925, 26 UST. 571, 94 L.N.T.S. 65.           |                                                                  |                                                                  |
| X                                                              |                                                                  |                                                                  |
| CWC                                                            | Convention on the Prohibition of the Development, Production,    |                                                                  |
| Stockpiling and Use of Chemical Weapons and on Their           |                                                                  |                                                                  |
| Destruction, Jan. 13, 1993, 32 I.L.M. 800.                     |                                                                  |                                                                  |
| X                                                              | H.CP                                                             | 1954 Hague Convention for the Protection of Cultural Property in |
| the Event of Armed Conflict, May 14, 1954, 249 U.N.T.S. 216.   |                                                                  |                                                                  |
| X                                                              |                                                                  |                                                                  |
| 1972 BW                                                        | Convention on the Prohibition of the Development, Production and |                                                                  |
| Stockpiling of Bacteriological (Biological) and Toxin Weapons  |                                                                  |                                                                  |
| and on Their Destruction, Apr. 10, 1972, 26 UST. 583.          |                                                                  |                                                                  |
| X                                                              |                                                                  |                                                                  |
| CCW                                                            | Convention on Prohibitions or Restrictions of the Use of Certain |                                                                  |
| Conventional Weapons Which May be Deemed to be Excessively     |                                                                  |                                                                  |
| Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 19 |                                                                  |                                                                  |
| I.L.M. 1523.                                                   |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
| X                                                              |                                                                  |                                                                  |
| FM 27-10                                                       | D                                                                |                                                                  |
| EP                                                             |                                                                  |                                                                  |
| '                                                              |                                                                  |                                                                  |
| T OF THE                                                       |                                                                  |                                                                  |
| A                                                              |                                                                  |                                                                  |
| RMY                                                            |                                                                  |                                                                  |
| , F                                                            |                                                                  |                                                                  |
| IELD                                                           |                                                                  |                                                                  |
| M                                                              |                                                                  |                                                                  |
| ANUAL                                                          |                                                                  |                                                                  |
| 27-10, T                                                       |                                                                  |                                                                  |
| HE                                                             |                                                                  |                                                                  |
| L                                                              |                                                                  |                                                                  |
| AW OF                                                          |                                                                  |                                                                  |
| L                                                              |                                                                  |                                                                  |
| AND                                                            |                                                                  |                                                                  |
| W                                                              |                                                                  |                                                                  |
| ARFARE                                                         |                                                                  |                                                                  |
| (July 1956).                                                   |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |
| NWP 1-14M                                                      | D                                                                |                                                                  |
| EP                                                             |                                                                  |                                                                  |
| '                                                              |                                                                  |                                                                  |
| T OF THE                                                       |                                                                  |                                                                  |
| N                                                              |                                                                  |                                                                  |
| AVY                                                            |                                                                  |                                                                  |
| , N                                                            |                                                                  |                                                                  |
| AVAL                                                           |                                                                  |                                                                  |
| W                                                              |                                                                  |                                                                  |
| ARFARE                                                         |                                                                  |                                                                  |
| P                                                              |                                                                  |                                                                  |
| UBLICATION                                                     |                                                                  |                                                                  |
| 1-14M/U.S.                                                     |                                                                  |                                                                  |
| M                                                              |                                                                  |                                                                  |
| ARINE                                                          |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| ORPS                                                           |                                                                  |                                                                  |
| MCPW 5-2.1, T                                                  |                                                                  |                                                                  |
| HE                                                             |                                                                  |                                                                  |
| C                                                              |                                                                  |                                                                  |
| OMMANDER                                                       |                                                                  |                                                                  |
| '                                                              |                                                                  |                                                                  |
| S                                                              |                                                                  |                                                                  |
| H                                                              |                                                                  |                                                                  |
| ANDBOOK ON                                                     |                                                                  |                                                                  |
| THE                                                            |                                                                  |                                                                  |
| L                                                              |                                                                  |                                                                  |
| AW OF                                                          |                                                                  |                                                                  |
| N                                                              |                                                                  |                                                                  |
| AVAL                                                           |                                                                  |                                                                  |
| O                                                              |                                                                  |                                                                  |
| PERATIONS                                                      |                                                                  |                                                                  |
| (October 1995).                                                |                                                                  |                                                                  |
|                                                                |                                                                  |                                                                  |

## Introduction To Public I**Nternational** Law I. Objectives

A.  Understand the foundation of the international legal system. B.
Understand the primary sources of international law and how they are created and
how they relate to each other.


## Ii.  Introduction


A.  Military operations involve complex questions related to international law.
International law provides the framework for informed operational decisions, establishes certain limitations on the scope and nature of command options, and imposes affirmative obligations related to the conduct of U.S. forces.  Commanders
rely on Judge Advocates to understand fundamental principles of international law,
translate those principles into an operational product, and articulate the essence of the principles when required.
B.
This body of law has a broader and independent significance in the context of U.S.
law and jurisprudence because international lawamong the cornerstones of our own
Constitution1"is part of our law."2


## Iii. Fundamental Principles Of International Law

A.
 Definition. International law is defined as "rules and principles of general application
dealing with the conduct of States and of international organizations and with their
relations *inter se*, as well as some of their relations with persons, whether natural or
juridical."3  Regulating those relations is generally viewed through two different

lenses: public and private. Public international law is that portion of international law that deals mainly with intergovernmental relations.  Private international law is primarily concerned with the "foreign transactions of individuals and corporations."4


B.
 States. International law developed to regulate relations between States, and States
are the focus of the international legal system.  International law establishes four criteria that must be met for an entity to be regarded as a State under the law: 1.
Defined territory (which can be established even if one of the boundaries is in
dispute or some of the territory is claimed by another State);
2.
Permanent population (the population must be significant and permanent even if
a substantial portion is nomadic);
3.
Government (note that temporary occupation by enemy forces during war or
pursuant to an armistice does not serve to extinguish statehood even if the legal
control of the territory shifts temporarily); and,

4.
Capacity to conduct international relations.5

C.
Consequences of statehood. Under international law, a State has:
1.
Sovereignty over its territory and general authority over its nationals;
2.
Status as a legal person, with capacity to own, acquire, and transfer property, to make contracts and enter into international agreements, to become a member of
international organizations, and to pursue, and be subject to, legal remedies; and,
3.
Capacity to join with other States to make international law, as customary law
or by international agreement.6

D.
 Inherent tension. Under international law, sovereignty is the ultimate benefit of
statehood. Inherent to sovereignty is the notion that a State should be free from

outside interference; international law, however, seeks to regulate State conduct. States "trade" aspects of sovereignty in order to reap the benefits of the international legal system.

## Iv. Sources Of International Law

A.  Article 38 of the Charter of the International Court of Justice (ICJ)7 lists the following
sources of international law: 1.
 International agreements (i.e., treaties).
a.
Treaties are written international agreements concluded between two or
more States. They are also referred to as conventions, protocols,
covenants, and attached regulations. They only bind those States that are
parties. Note, however, that customary international law can emerge from rules established in treaties and, as a consequence, bind all States that do
not consistently object to the application of that rule.  Also, customary international law can be codified in subsequent treaties.
b.
In the U.S., treaties include those international agreements concluded by
the Executive branch which receive the consent of at least two-thirds of the Senate. Once ratified by the President, they become the "supreme law of the land" pursuant to the Supremacy Clause of the U.S. Constitution (Article VI, Clause 2).
c.
Reservations and Understandings. A reservation is essentially a unilateral
modification of the basic obligations established by a treaty.  Under
international law, a reservation is permitted if it is compatible with the object and purpose of the treaty. It is treated as a "counter-offer," and is only binding upon other States that agree to it, though agreement is assumed.  Unlike a reservation, an understanding does not modify basic treaty obligations; rather, it guides future interpretation of those obligations.8


d.
Treaties and domestic statutes. U.S. laws fall under the umbrella of the Supremacy Clause.  Accordingly, a "later in time" analysis determines the
supremacy of a treaty in conflict with a statute.  Courts always attempt to reconcile apparent inconsistent provisions before resorting to the later in
time rule.  Because U.S. courts generally seek to avoid such conflicts by interpreting statutes "in ways consistent with the United States'
international obligations,"9 any conflict must be explicit for a court to find
a statutory intent to contradict a treaty.10

2.
International custom (i.e., customary international law). a.
That law resulting from the general and *consistent* practice of States
followed from a sense of legal obligation (*opinio juris*).11

b.
Best understood as the "unwritten" rules that bind all members of the community of States.
c.
A practice does not require acceptance by 100% of States to amount to customary international law.  However, the argument that a norm exists is enhanced proportionally in relation to the number of States that recognize
and adhere to the norm.  There is also a correlation between the length of
time a practice is followed and the persuasiveness that the practice amounts to customary international law.  While this factor is not
dispositive, developing law is more suspect than established custom.
d.
 Persistent objector. It is possible for a State not to be bound by a rule of
customary international law if that State persistently and openly objects to
the rule as it develops, and continues to declare that it is not bound by the rule. The U.S. may act in accordance with principles that other States assert amount to customary international law, but expressly state it does
has been criticized by the United States on several grounds, has resulted in 161 "Rules" of customary not consider itself legally obligated to do so. This is motivated by a concern that our conduct not be considered evidence of a customary norm.

e.
Jus Cogens. Some principles of international law are considered peremptory norms and cannot be derogated, even by treaty.  Examples cited by the ICJ include prohibitions against inter-state aggression,
slavery, genocide, racial discrimination, and torture.12


f.
Unlike international law established by treaty, customary international law is not mentioned in the Constitution's Supremacy Clause.  It is, however,
considered part of U.S. law.13
g.
Customary international law and treaty law are equal in stature, with the
later in time controlling.14

3.
General principles of law recognized by civilized nations. These "general principles," as reflected primarily in the judicial opinions of domestic courts,
can serve as "gap fillers" in international law.15  The prevailing view is "that
general principles of law are to be found in municipal law through the comparative law process. Under this approach, if some proposition of law is to be found in virtually every legal system, it will constitute a general principle of
law."16  This provides flexibility to resolve issues that are not squarely resolved
by existing treaty or customary international law.
4.
Judicial decisions and the teaching of the most highly qualified publicists of the
various nations, can be subsidiary means for the determination of rules of law. These are not really "sources" of law in that they are "not ways in which law is made or accepted, but opinion-evidence as to whether some rule has in fact become or been accepted as international law."17


## History Of The L**Aw Of** War I. Objectives

A.
 Understand the *Jus ad Bellum* and *Jus in Bello* "prongs" of legal regulation of
warfare.
B.
Understand the historical evolution of laws and events related to the conduct of war.

## Ii.  Introduction

A.  "In times of war, the law falls silent."1  This may have been the case in ancient times,
but it could not be further from the truth in modern times where the laws of war permeate armed conflict.
B.
What is war?  Although there is no binding international legal definition of war, one
proposed definition contains the following four elements:  (a) a contention; (b) between at least two nation-states; (c) wherein armed force is employed; (d) with an
intent to overwhelm.
C.
War v. Armed Conflict. Historically, the applicability of the law of war often
depended upon a State subjectively classifying a conflict as a "war."  Recognition of
a state of war is no longer required to trigger the law of war.  After the 1949 Geneva
Conventions, the law of war is now triggered by the existence of "armed conflict" between States.


"The substitution of [armed conflict] for the word 'war' was deliberate.  One
may argue almost endlessly about the legal definition of 'war'. . . . The expression 'armed conflict' makes such arguments less easy.  Any difference
arising between two States and leading to the intervention of armed forces is an armed conflict . . . [i]t makes no difference how long the conflict lasts, or how much slaughter takes place."2



D.  The Law of War. The law of war is the "customary and treaty law applicable to the
conduct of warfare on land and to relationships between belligerents and neutral
States."3  It "requires that belligerents refrain from employing any kind or degree of
violence which is not actually necessary for military purposes and that they conduct
hostilities with regard for the principles of humanity and chivalry."4  The law of war
is also referred to as the law of armed conflict (LOAC) or international humanitarian law (IHL).5

E.
The law of war has evolved to its present content over millennia based on the actions
and beliefs of States. It is deeply rooted in history, and an understanding of this
history is necessary to understand current law of war principles.

## Iii. Unifying Themes Of The Law Of War

A.  Law exists to either prevent conduct or control conduct.  These characteristics
permeate the law of war, as exemplified by two major prongs.  *Jus ad Bellum* serves to regulate the conduct of going to war, while *Jus in Bello* serves to regulate conduct
within war.

B.
 Validity. Although critics of the regulation of warfare cite historic examples of
violations of evolving laws of war, history provides the greatest evidence of the
validity of this body of law. 1.
History shows that in the vast majority of instances, the law of war works.
Despite the fact that the rules are often violated or ignored, it is clear that
mankind is better off with than without them.  Mankind has always sought to limit the effect of conflict on combatants and has come to regard war not as a
state of anarchy justifying infliction of unlimited suffering, but as an unfortunate reality which must be governed by some rule of law.  This point is illustrated in Article 22 of the 1907 Hague Regulations:  "the right of
5 The moniker describing this body of law has changed over time.  Before the 1949 Geneva Conventions, it was known universally as the "Law of War."  The 1949 Geneva Conventions advanced a change to the term "Law of Armed Conflict" to emphasize that the application of the law and prescriptions did not depend on either a formal declaration of war or recognition by the parties of a state of war.  Of late, many scholars and nongovernmental organizations refer to this body of law as "International Humanitarian Law" (IHL).

belligerents to adopt means of injuring the enemy is not unlimited."6  This rule does not lose its binding force in a case of necessity.



2.
Regulating the conduct of warfare is ironically essential to the preservation of a
civilized world. General MacArthur exemplified this notion when he confirmed
the death sentence for Japanese General Yamashita, writing:  "The soldier, be he friend or foe, is charged with the protection of the weak and unarmed.  It is
the very essence and reason of his being. When he violates this sacred trust, he
not only profanes his entire cult but threatens the fabric of international society."
C.
The trend toward regulation grew over time in scope and recognition.  When
considering whether these rules have validity, the student and the teacher (Judge
Advocates teaching Soldiers) must consider the objectives of the law of war. 1.
The purposes of the law of war are to (1) integrate humanity into war, and (2) serve as a tactical combat multiplier.

2.
The validity of the law of war is best explained in terms of both objectives.  For instance, many cite the German massacre at Malmedy as providing American forces with the inspiration to break the German advance during World War II's Battle of the Bulge.  Accordingly, observance of the law of war denies the enemy a rallying cry against difficult odds.

## D.  Why Respect The Law Of War?

1.
May motivate the enemy to observe the same rules.
2.
May motivate the enemy to surrender.
3.
Guards against acts that violate basic tenets of civilization, protects against
unnecessary suffering, and safeguards certain fundamental human rights.
4.
Provides advance notice of the accepted limits of warfare.
5.
Reduces confusion and makes identification of violations more efficient.



6.
Helps restore peace.

E.
The law of war has two major prongs: *Jus ad Bellum* and *Jus in Bello*, and one less
developed prong, *Jus post Bellum*. 1.
Jus ad Bellum is the law dealing with conflict management, and how States initiate armed conflict (i.e., under what circumstances the use of military power
is legally and morally justified).

2.
Jus in Bello is the law governing the actions of States once conflict has started
(i.e., what legal and moral restraints apply to the conduct of waging war).

3.
 Both *Jus ad Bellum* and *Jus in Bello* have developed over time, drawing most of
their guiding principles from history.  The concepts of *Jus ad Bellum* and Jus in Bello developed both unevenly and concurrently.  For example, during the majority of the *Jus ad Bellum* period, most societies only dealt with rules
concerning the legitimacy of using force. Once the conditions were present that
justified war, there were often no limits on the methods used to wage war. Eventually, both theories began to evolve together.
4.
Jus post Bellum is the third, largely historically neglected prong of the Just War
Tradition, that focuses on the issues regulating the end of warfare and the return from war to peace (i.e., what should a just peace look like).

## Iv. Origins Of Jus Ad Bellum And Jus In Bello

A.  *Jus ad Bellum*. Law became an early factor in the historical development of warfare.
The earliest references to rules regarding war referred to the conditions that justified
resort to war both legally and morally. 1.
 The ancient Egyptians and Sumerians (25th century B.C.) generated rules
defining the circumstances under which war might be initiated.
2.
The ancient Hittites (16th century BC) required a formal exchange of letters and
demands before initiating war.  In addition, no war could begin during the
planting season.
3.
A Greek city-state was justified in resorting to the use of force if a number of
conditions existed. If those conditions existed, the conflict was blessed by the
gods and was just; otherwise, armed conflict was forbidden.
4.
The Romans formalized laws and procedures that made the use of force an act of last resort. Rome dispatched envoys to the States against whom they had grievances, and attempted to resolve differences diplomatically.  The Romans
also are credited with developing the requirement for declaring war.  Cicero
wrote that war must be declared to be just.
B.
Jus in Bello. This body of law deals with rules that control conduct during the prosecution of a war to ensure that it is legal and moral.


1.
Ancient Babylon (7th century B.C.). The ancient Babylonians treated both
captured soldiers and civilians with respect in accordance with well-established rules.

2.
Ancient China (4th century B.C.). Sun Tzu's *The Art of War* set out a number of
rules that controlled what soldiers were permitted to do during war, including
the treatment and care of captives, and respect for women and children in captured territory.

3.
Ancient India (4th century B.C.). The Hindu civilization produced a body of
rules codified in the *Book of Manu* that regulated land warfare in great detail.
4.
Similarly, the Old Testament and Koran imposed some limits on how victors
could treat the vanquished.

## V.  The Historical Periods A.  Just War Period (335 B.C. - 1800 A.D.)

1.
This period ranged from about 335 B.C.-1800 A.D.  The law during this period was principally concerned with *Jus ad Bellum* considerations and developed
initially as a means to refute Christian pacifists and provide for certain, defined
grounds under which a resort to warfare was both morally and religiously permissible.
2.
Early Beginnings: Just War Closely Connected to Self-Defense. Aristotle (335 B.C.) wrote that war should be employed only to (1) prevent men becoming enslaved, (2) establish leadership which is in the interests of the led, or (3) enable men to become masters of men who naturally deserved to be enslaved.
Cicero refined Aristotle's model by stating that "the only excuse for going to war is that we may live in peace unharmed...."

3.
Era of Christian Influence:  Divine Justification. Early church leaders forbade
Christians from employing force even in self-defense.  This position became less and less tenable with the expansion of the Christian world.  Church scholars later reconciled the dictates of Christianity with the need to defend the Holy Roman Empire from the approaching vandals by adopting a Jus ad Bellum
position under which recourse to war was just in certain circumstances (5th

century A.D.).
4.
 Middle Ages. In his *Summa Theologica*, Saint Thomas Aquinas (12th century
A.D.) refined the Just War theory by establishing the three conditions under
which a Just War could be initiated: (a) with the authority of the sovereign; (b)
with a just cause (to avenge a wrong or fight in self-defense); and (c) so long as the fray is entered into with pure intentions (for the advancement of good over evil). The key element of such an intention was to achieve peace.  This was the requisite "pure motive."
5.
 Juristic Model.

a.
Saint Thomas Aquinas' work signaled a transition of Just War doctrine
from a concept designed to explain why Christians could bear arms (apologetic) toward the beginning of a juristic model.  The concept of Just War initially sought to solve the moral dilemma posed by the tension between the Gospel and the reality of war.  With the increase in the number of Christian nation-states, this concept fostered an increasing
concern with regulating war for more practical reasons.
b.
The concept of Just War was being passed from the hands of the
theologians to the lawyers.  Several great European jurists emerged to
document customary laws related to warfare.  Hugo Grotius (1583-1645) produced the most systematic and comprehensive work, On the Law of War and Peace. His work is regarded as the starting point for the development of the modern law of war.  While many of the principles enunciated in his work were consistent with previous church doctrine, Grotius boldly asserted a non-religious basis for this law.  According to
Grotius, the law of war was based not on divine law, but on recognition of the true natural state of relations among States.  Thus, the law of war was based on natural, not divine, law.


6.
Jus ad Bellum Principles. By the time the next period emerged, Just War
doctrine had generated a widely-recognized set of principles that represented the
early customary law of war.  The most fundamental Just War Jus Ad Bellum
principles are: a.
Proper Authority.  A decision to wage war can be reached only by legitimate authority (those who rule, i.e., the sovereign).
b.
Just Cause. A decision to resort to war must be based upon either a need
to right an actual wrong, be in self-defense, or be to recover wrongfully seized property.
c.
Right Intention. The State must intend to fight the war only for the sake of the Just Cause. It cannot employ the cloak of a Just Cause to advance
other intentions.
d.
Probability of Success. Except in the case of self-defense, there must be a
reasonable prospect of victory.
e.
Last Resort. A State may resort to war only if it has exhausted all
plausible, peaceful alternatives to resolving the conflict in question.


f.
Macro Proportionality. A State must, prior to initiating a war, weigh the
expected universal good to accrue from prosecuting the war against the
expected universal evils that will result.  Only if the benefits seem reasonably proportional to the costs may the war action proceed.
7.
Jus in Bello Principles. *Jus in Bello* received less attention in Just War
theory. Two principles, however, do exist according to the Just War tradition.

a.
Micro Proportionality. States are to weigh the expected universal goods/benefits against the expected universal evils/costs, in terms of each significant military tactic and maneuver employed within the war. Only if the goods/benefits of the proposed action seem

reasonably proportional to the evils/costs, may a State's armed forces employ it.


b.
Discrimination.  One must make a distinction between combatants and non-combatants. Non-combatants may not be directly targeted and must have their rights respected.

## C. War As Fact Period (1800-1918)

1.
This period saw the rise of the State as the principal actor in foreign relations.
States transformed war from a tool to achieve justice, into a tool for the legitimate pursuit of national policy objectives.
2.
Just War Notion Pushed Aside. Positivism, reflecting the rights and privileges
of the modern State, replaced natural or moral law principles.  This body of
thought held that law is based not on some philosophical speculation, but on rules emerging from the practice of States and international conventions.  Basic Tenet of Positivism:  since each State is sovereign, and therefore entitled to wage war, there is no international legal mandate, based on morality or nature, to regulate resort to war (*realpolitik* replaces justice as the reason to go to war). War is, based upon whatever reason, a legal and recognized right of statehood.
In short, if use of military force would help a State achieve its policy objectives, then force may be used.

3.
 Clausewitz. This period was dominated by the *realpolitik* of Clausewitz. He
characterized war as a continuation of a national policy that is directed at some desired end. Thus, a State steps from diplomacy to war, not always based upon
a need to correct an injustice, but as a logical and required progression to
achieve some policy end.

4.
Foundation for Upcoming "Treaty Period." The War as Fact Period appeared as
a dark era for the rule of law. Yet, a number of significant developments
signaled the beginning of the next period. Based on the positivist view, the best
way to reduce the uncertainty associated with conflict was to codify rules regulating this area.  Intellectual focus began shifting towards minimizing resort to war and/or mitigating the consequences of war.  National leaders began to join academics in the push to control the impact of war (e.g., Czar Nicholas and Theodore Roosevelt pushed for the two Hague Conferences that produced the Hague Conventions and Regulations).
5.
During the War as Fact period, the focus began to change from *Jus ad Bellum* to
Jus in Bello.  With war a recognized and legal reality in the relations between States, a focus on mitigating the impact of war emerged.
6.
 Henry Dunant's *A Memory of Solferino* (1862). A graphic depiction of one of
the bloodiest battles of the Austro-Sardinian War, it served as the impetus for the creation of the International Committee of the Red Cross and the negotiation of the 1864 Geneva Convention.
7.
 Francis Lieber's Instructions for the Government of Armies of the United States
in the Field (1863). First modern restatement of the law of war, issued in the
form of General Order 100 to the Union Army during the American Civil War.
8.
International Revulsion to General Sherman's Total War. Sherman was very
concerned with the morality of war.  His observation that "War is Hell" demonstrates the emergence and reintroduction of morality.  As his 1864 "March to the Sea" during the American Civil War demonstrated, however, Sherman only thought the right to resort to war should be regulated.  Once war had begun, he felt it had no natural or legal limits.  In other words, he recognized only the first prong (*Jus ad Bellum*) of the law of war.
9.
Near the end of this period, the major States held the Hague Conferences (1899 1907) that produced the Hague Conventions.  While some Hague law focuses
on war avoidance, the majority of the law dealt with limitation of suffering during war.

## D.  Jus Contra Bellum Period (1918-1949)

1.
World War I represented a significant challenge to the validity of the "war as
fact" theory.  Despite the moral outrage directed toward the aggressors of World War I, legal scholars unanimously rejected any assertion that initiation of the
war constituted a breach of international law.  Nevertheless, world leaders
struggled to give meaning to a war of unprecedented carnage and destruction.
The "war to end all wars" sentiment manifested itself in a *Jus ad Bellum* shift in
intellectual direction, leading to the conclusion that aggressive use of force must be outlawed. a.
League of Nations. First time in history that States agreed upon an
obligation under the law not to resort to war to resolve disputes or to secure national policy goals. The Covenant of the League of Nations was
designed to impose upon States certain procedural mechanisms prior to initiating war. President Wilson, the primary architect, believed during these periods of delay, peaceful means of conflict management could be brought to bear.

b.
Kellogg-Briand Pact (1928). Officially referred to as the Treaty for the Renunciation of War, it banned aggressive war.  This is the event generally thought of as the "quantum leap": for the first time in history,
aggressive war is clearly and categorically banned.  In contradistinction to the post-World War I period, this treaty established an international legal basis for the post-World War II prosecution of those responsible for waging aggressive war. The Kellogg-Briand Pact remains in force today.
Virtually all commentators agree that the provisions of the treaty banning
aggressive war have ripened into customary international law.
2.
Use of force in self-defense remained unregulated.  No law has ever purported
to deny a sovereign the right to defend itself.  Some commentators stated that
the use of force in the defense is not war.

## E. Post-World War Ii Period (1949-)

1.
The procedural requirements of the Hague Conventions did not prevent World
War I, just as the procedural requirements of the League of Nations and the
Kellogg-Briand Pact did not prevent World War II.  World powers recognized
the need for a world body with greater power to prevent war, and international law that provided more specific protections for the victims of war.
2.
Post-World War II War Crimes Trials (Nuremberg, Tokyo, and Manila
Tribunals). The trials of those who violated international law during World War
II demonstrated that another quantum leap had occurred since World War I.

a.
Reinforced tenets of *Jus ad Bellum* and *Jus in Bello*, and ushered in the era
of "universality," establishing the principle that all States are bound by the law of war, based on the theory that law of war conventions largely reflect
customary international law.
b.
International law focused on an *ex post facto* problem during prosecution
of war crimes.  The universal nature of law of war prohibitions, and the
recognition that they were at the core of international legal values, resulted
in the legitimate application of those laws to those tried for violations.
3.
United Nations Charter. Continues the shift to outright ban on war. Required
Members, through Article 2(4), to refrain "from the threat or use of force"
against other States.
a.
Early Charter Period. Immediately after the negotiation of the Charter in 1945, many States and commentators assumed that the absolute language
in the Charter's provisions permitted the use of force only if a State had already suffered an armed attack.


b.
 Contemporary Period. Most States now agree that a State's ability to
defend itself is much more expansive than the provisions of the Charter
seem to permit based upon a literal reading.  This view is based on the
conclusion that the inherent right of self-defense under customary
international law was supplemented, not displaced, by the Charter.  This remains a controversial issue.
4.
 Geneva Conventions (1949). The four Conventions that evolved from the
earlier conventions of 1864, 1906, and 19297 were a comprehensive effort to
protect the victims of war. a.
"War" vs. "Armed Conflict." Article 2 common to all four Geneva
Conventions ended this debate. Article 2 asserts that the law of war applies in any instance of international armed conflict.

b.
Birth of the Civilians Convention. A post-war recognition of the need to
specifically address this class of individuals.
c.
The four Conventions are considered customary international law.  This
means that even if a particular State has not ratified the treaties, that State
is still bound by the principles within each of the four treaties because they
are merely a reflection of customary law that binds all States.  As a
practical matter, the customary international law status matters little because every State is currently a party to the Conventions.

7 The Convention of 1864 had 10 articles, and provided implicit protections for the wounded and sick soldiers in the field who were out of combat, and the prohibition against attacking neutral personnel
medical and chaplainswho were assisting them.  The 1906 Geneva Convention had 33 articles and gave explicit protections to the wounded and sick in the field and added what became GC II by addressing the care and protection of wounded and sick at sea.  The 1929 Convention added the Prisoner of War protections that were updated in GC III.

d.
The Conventions are directed at State conduct, not the conduct of international forces. In practice, forces operating under U.N. control comply with the Conventions.
e.
Clear shift toward a true humanitarian motivation:  "the Conventions are
coming to be regarded less and less as contracts on a basis of reciprocity concluded in the national interest of each of the parties, and more and
more as solemn affirmations of principles respected for their own sake."8

5.
The 1977 Additional Protocols. These two treaties were negotiated to
supplement the four Geneva Conventions.  Protocol I supplements rules governing international armed conflicts, and Protocol II extends the protections
of the Conventions as they relate to internal armed conflicts.

## Vi. Conclusion



"Wars happen.  It is not *necessary* that war will continue to be viewed as an
instrument of national policy, but it is likely to be the case for a very long time.
Those who believe in the progress and perfectibility of human nature may continue to hope that at some future point reason will prevail and all international disputes will be
resolved by nonviolent means . . . . Unless and until that occurs, our best thinkers must continue to pursue the moral issues related to war. Those who romanticize war do not do mankind a service; those who ignore it abdicate responsibility for the future of mankind, a responsibility we all share even if we do not choose to do so."9


## Framework Of The L**Aw Of** War I. Objectives

A.  Understand the Hague Tradition and the Geneva Tradition.
B.
Understand the role of the 1977 Additional Protocols to the 1949 Geneva
Conventions.
C.
Understand how the law of war is triggered and the distinctions between Common
Article 2 and Common Article 3.

## Ii.  Hague Tradition, Geneva Tradition, And The "Intersection"

A.  Sources of the Law of War. While there are numerous law of war treaties in force
today, most fall within two broad categories, commonly referred to as the "Hague Law" or "Hague Tradition" of regulating *means and methods* of warfare, and the
"Geneva Law" or "Geneva Tradition" of *respecting and protecting victims* of
warfare.


1.
The "Hague Tradition." This prong of the law of war focuses on regulating the
means and methods of warfare (e.g., tactics, weapons, and targeting decisions).

a.
This method is exemplified by the Hague law, consisting of the various
Hague Conventions of 1899, as revised in 1907,1 plus the 1954 Hague
Cultural Property Convention2 and the 1980 Certain Conventional
Weapons Convention.3
b.
The rules relating to the means and methods of warfare are primarily
derived from Articles 22 through 41 of the Regulations Respecting the
Laws and Customs of War on Land annexed to Hague Convention IV. Article 22 states that the means of injuring the enemy are not unlimited.


1HR.

2 H.CP.

3 CCW.



c.
Treaties. The following treaties, limiting specific aspects of warfare, are
also sources of targeting guidance. These treaties are discussed more fully
in the Means and Methods of Warfare section on weapons.
i.
Gas. The 1925 Geneva Protocol prohibits use in war of
asphyxiating, poisonous, or other gases.4  A number of States,
including the U.S., reserved the right to respond with chemical
weapons to a chemical attack. The 1993 Chemical Weapons Convention, however, prohibits production, stockpiling, and use of chemical weapons, even in retaliation.  The U.S. ratified the CWC in April 1997.
ii.
Cultural Property. The 1954 Hague Cultural Property Convention
seeks to protect cultural property.5

iii.
Biological Weapons. The 1925 Geneva Protocol prohibits biological
weapons. The 1972 Biological Weapons Convention prohibits their
use in retaliation, as well as production, manufacture, and stockpiling.6

iv.
Conventional Weapons. The 1980 Certain Conventional Weapons
Convention (often referred to as the CCW) restricts or prohibits the use of certain weapons deemed to cause unnecessary suffering or to be indiscriminate:  Protocol I - non-detectable fragments; Protocol II
- mines, booby traps, and other devices; Protocol III - incendiaries; Protocol IV- laser weapons; and Protocol V - explosive remnants of war. The U.S. has ratified the Convention with certain reservations, declarations, and understandings.7

2.
The "Geneva Tradition."  This prong of the law of war is focused on
establishing non-derogable protections for the "victims of war."  In contrast to
the Hague model of regulating specific weapons and their application, the Geneva Tradition confers the protections of the law of war primarily by assigning certain persons and places a legal status.

4 G.BC.

5 H.CP.

6 1972 BW.


7 CCW.

a.
This method is exemplified by the four Geneva Conventions of 1949.
While there were earlier Geneva Conventions (1864, 1906, and 1929), the current four treaties of 1949 are each devoted to protecting a specific
category of war victims:
i.
GC I: Wounded and Sick in the Field.8

ii.
GC II: Wounded, Sick, and Shipwrecked at Sea.9


iii.
GC III: Prisoners of War.10

iv.
GC IV: Civilians.11
b.
The Geneva Conventions entered into force on October 21, 1950. The U.S. ratified the conventions on February 8, 1955.  Currently, all existing States are parties to the 1949 Geneva Conventions.
3.
The "Intersection." In 1977, two treaties were drafted to supplement the 1949
Geneva Conventions: Additional Protocols I and II (AP I and AP II).


a.
The Protocols were motivated by the International Committee of the Red Cross's belief that the 1949 Geneva Conventions and the Hague Regulations insufficiently covered certain areas of warfare in the conflicts following World War II, specifically aerial bombardments, protection of civilians, and wars of national liberation.

b.
Status. At the time of this writing, 170 States were parties to AP I and
165 States were parties to AP II.  Unlike the Hague and Geneva Conventions, the U.S. has never ratified either of these Protocols.
Significant portions, however, reflect customary international law.  While there is no complete authoritative list of the AP I articles the U.S. currently views as either customary international law, or specifically objects to, many consider remarks made in 1987 by Michael J. Matheson,

8 GC I.

9 GC II.

10 GC III.

11 GC IV.



then Deputy Legal Advisor at the Department of State, as the most comprehensive expression of the U.S. position.12  The U.S. has recently stated it considers almost all of AP II to reflect customary international law. In March 2011, President Obama announced his continued support of AP II and urged the Senate to act "as soon as practicable" on AP II.  At that same time, President Obama announced that the United States would comply with a certain provision of AP I [Article 75 which provides fundamental guarantees for persons in the hands of opposing forces in an international armed conflict] "out of a sense of legal obligation."13



c.
Although the U.S. has never ratified either AP I or AP II, their relevance
continues to grow based on several factors:

i.
The argument that the entire body of AP I (despite U.S. objections)
has attained the status of customary international law continues to
gain strength.
ii.
These treaties bind virtually all of our coalition partners.


iii.
U.S. policy is to comply with AP I and II whenever feasible.

## B. Other Sources For Analyzing The Law Of War.


1.
 Treaty Commentaries. These are written works (also referred to as travaux
preparatoires) by official recorders of the drafting conventions for the major
law of war treaties (Jean Pictet for the 1949 Geneva Conventions; Yves Sandoz for the Additional Protocols).  The commentaries provide critical explanations to many treaty provisions, and are therefore similar to legislative history in the domestic context.  While a reading of the *travaux* is not always necessary where the plain meaning of the terms is evident from the text, they
remain useful.  Given the prevalence of terms of art in law of war, a reading of
the commentaries often illuminates the text of the treaty in question.  Where the meaning of a provision contained in the treaty is unclear, the *travaux* can
be decisive in resolving conflicts regarding the understanding of the parties at the time States party became signatories.


2.
 Military Publications. Military manuals are not sources of law in the context
of creating law. Rather, such manuals are useful references in developing an
understanding of the application of law of war concepts within the military
generally and specific services in particular.  However, recent studies have examined military manuals for evidence of *opinio juris* in seeking to resolve questions of whether State practice has ripened into binding customary international law.14  Because some of these publications are no longer
available in printed form they have been compiled, along with many other key source documents, in the *Law of War Documentary Supplement*.
a.
FM 27-10, *The Law of Land Warfare*. Organized functionally by
category, and incorporates rules from multiple sources including customary and treaty law.  Note that FM 27-10 is dated July 1956, with Change 1 dated 15 July 1976.
b.
DA Pam 27-1, *Treaties Governing Land Warfare*. A verbatim reprint of
the Hague and Geneva Conventions.
c.
DA Pam 27-1-1, *Protocols to the Geneva Conventions of 12 August 1949*.
A verbatim reprint of the 1977 Additional Protocols to the Geneva Conventions.
d.
NWP 114M/MCWP 512.1, The Commander's Handbook on the Law of
Naval Operations. Chapters 5, 6, and 813 address specific aspects of the law of war. Other chapters of the publication are more broadly applicable to maritime operations and international law generally.


## Iii. How The Law Of War Is Triggered

A.  The Barrier of Sovereignty. Among the most fundamental aspects of State
sovereignty is freedom from external threats.
1.  That freedom is prominently displayed in the United Nations, the first purpose of
which is maintenance of international peace and security.15  The UN Charter
recognizes the sovereign equality of all member States,16 who in turn must
resolve disputes in peaceful means and refrain from "the threat or use of force
against the territorial integrity or political independence of any state."17

2.  Normally, the concept of sovereignty protects a State from outside interference
in its internal affairs.  This is exemplified by the predominant role of domestic law in internal affairs. The law of war is a body of international law intended to regulate the conduct of State actors (typically combatants) during periods of conflict. Whenever international law operates to regulate the conduct of a State, it must pierce the shield of sovereignty. The law of war is therefore applicable
only after the requirements for piercing the shield of sovereignty have been satisfied.
3.
Once triggered, the law of war intrudes upon the sovereignty of the regulated State by limiting the means and methods of its application of violence in
combat, and by imposing obligations to respect and protect certain persons and
places.

4.
The extent of this intrusion depends on the nature of the conflict, but may
include restrictions on targeting, requirements for the treatment of POWs or detainees, and the imposition of criminal liability for failure to abide by the law.

B.
The Triggering Mechanism. The law of war includes standards for when it becomes
applicable. This standard is reflected in the four Geneva Conventions.
1.
Common Article18 **2 - International Armed Conflict (IAC)**: "[T]he present
Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties,


application and parties' obligations under the treaties. Some of the Common Articles are identically numbered, while others are worded virtually the same but numbered differently in various Conventions.
For example, the article dealing with special agreements is Article 6 of the first three Conventions, but Article 7 of the fourth Convention.

even if the state of war is not recognized by one of them."19  Insofar as this is an article common to all four Conventions, its triggering indicates that all four Conventions are thereby applicable.

a.
This is a true *de facto* standard. The subjective intent of the belligerents is
irrelevant. The drafters deliberately avoided the legalistic term "war" in
favor of the broader principle of armed conflict.  According to the GC Commentary, this article was intended to be broadly defined in order to extend the reach of the Conventions to as many conflicts as possible.

b.
The Commentary states that the law of war applies to "any difference
arising between two States and leading to the intervention of armed
forces." Accordingly, the following two facts result in application of the
entire body of the law of war, from the inception of the conflict:
i.
A dispute between States, and
ii.
Armed conflict.

c.
Additional Protocol I. Supplements Common Article 2. i.
This controversial expansion of Common Article 2 expands the
Geneva Conventions' application to conflicts previously considered
non-international: "[A]rmed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination."20



ii.
The United States has not previously ratified this treaty largely
because of objections to Article 1(4).
d.
Termination of Application.  The status of a conflict as an international
armed conflict within the meaning of Common Article 2 terminates on the later of: i.
Final repatriation (GC I, art. 5; GC III, art. 5).

ii.
General close of military operations (GC IV, art. 6).

iii.
Occupation. (GC IV, art. 6). In cases of occupation, GC IV applies
for one year after the general close of military operations.  In situations where the occupying power still exercises governmental
functions, however, that power is bound to apply certain key provisions of GC IV for the duration of the occupation.
2.
Common Article 3 - Non-International Armed Conflict (NIAC) or Internal
Armed Conflict: "Armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties . . . ."21

a.
These types of conflicts make up the vast bulk of ongoing conflicts.
Whereas the existence of an international armed conflict triggers the entire body of the law of war, the existence of an internal armed conflict (also
called "non-international armed conflict" or "NIAC") only triggers
application of Common Article 3's "mini convention" protections (and, in the case of States party, the protections contained in Additional Protocol II).

b.
Regulation of these types of conflict necessarily involves the interjection
of international regulation into a purely internal conflict - a much more substantial impairment of both territorial sovereignty and sovereign independence. As such, Common Article 3 was considered a monumental achievement for international law in 1949.  But, the internal nature of these conflicts explains the limited scope of international regulation.
i.
Domestic law still applies. Unlike combatants during international armed conflict, guerrillas do not receive combatant immunity for their war-like acts. They may be punished by the sovereign as any
other criminal.
ii.
Lack of effect on legal status of the parties. This is an essential
clause, without which there would be no provisions applicable to
internal armed conflicts within the Conventions.  Despite the clear language of the last paragraph of Common Article 3 ("The application of the preceding provisions shall not affect the legal
status of the Parties to the conflict."), States have been reluctant to
apply Common Article 3 protections explicitly for fear of conferring a degree of international legitimacy on rebels.



c.
What is an internal armed conflict?  Not all internal conflicts rise to the
level of non-international armed conflict within the meaning of Common
Article 3.  Some conflict is more like isolated acts of violence, riots, or banditry. Although no set of criteria is listed in the Convention itself for determining the existence of a non-international armed conflict, the Commentary offers non-binding criteria to guide observers in determining
whether any particular situation rises to the level of armed conflict:22

i.
Does the group have an organized military force?
ii.
Are members of the group subject to some authority?
iii.  Does the group control some territory?

iv.  Does the group demonstrate respect for the law of war?  This is more
often accepted to mean that the group must not demonstrate an unwillingness to abide by the law of war.
v.
Does the government respond to the group with regular armed forces?
d.
Additional Protocol II. Supplements Common Article 3.
i.
 Controversial shrinking coverage of law relating to non-international
armed conflict.  Intended to supplement the substantive provisions of Common Article 3, AP II formalized the criteria for the application
of that Convention to a non-international armed conflict, requiring
both more formalized command structures and some control over
specific territory. According to AP II, art. 1, "dissident armed forces
or other organized armed groups" must: A.
Be under responsible command.


22 GC I Commentary.


B.
Exercise control over a part of a State so as to enable them to
carry out sustained and concerted military operations and to implement the requirements of AP II.
C.
How do the Protocols fit in?
1.
As indicated, the 1977 Additional Protocols to the 1949 Geneva Conventions
are supplementary treaties. AP I is intended to supplement the law of war
related to international armed conflict (Common Article 2 conflicts), while AP II is intended to supplement the law of war related to internal armed conflict (Common Article 3 conflicts).  Therefore:
a.
When you think of the law related to international armed conflict, also
think of AP I; and
b.
When you think of the law related to internal armed conflict, also think of
AP II.
D.  U.S. policy is to comply with the law of war during all operations, whether
international armed conflict, internal armed conflict, or situations short of armed
conflict.

1.
DoD Directive 2311.01E (9 May 2006), DoD Law of War Program, requires all members of the armed forces to "comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations."23


2.
The Chairman of the Joint Chiefs of Staff has issued further guidance on the matter.  CJCSI 5810.01D (30 Apr 2010), which implements the DoD Law of War Program, similarly states that "[t]he Armed Forces of the United States comply with the law of war during all armed conflicts, however . . . characterized, and in all other military operations."24

23 DoD Directive 2311.01E (May 9, 2006) supersedes the language in DoD Directive 5100.77 (Dec 9,
1998 - now canceled) that required members of the armed forces to "comply with the law of war during all armed conflicts, however such conflicts are characterized, and with the principles and spirit of the law of war during all other operations."

24 Chairman of the Joint Chiefs of Staff Instruction 5810.01D, Implementation of the DoD Law of War Program (30 Apr 2010).

## Iv. Law Of War And Human R**Ights** Law

A.  What is the relationship between the law of war and human rights law?  Human rights
law refers to a distinct body of international law, intended to primarily protect individuals from the arbitrary or cruel treatment by their own governments.  While the substance of human rights protections may be synonymous with certain law of war protections, it is critical to remember these are two distinct bodies of international law. The law of war is triggered by conflict.  No such trigger is required for human rights law. These two bodies of international law are easily confused, especially because of the contemporary use of the term "international humanitarian law" in place of "law of war" or "law of armed conflict."  There is much current debate
between the merging, or "complementarity" between the law of war and human rights
law. Further discussion of this issue is found in the Human Rights chapter, *infra*.

## Legal Basis For The Use Of F**Orce** I. O**Bjectives**

A.  Understand the international legal prohibition against the threat or use of force as
found in Article 2(4) of the United Nations (UN) Charter (the "rule").
B.
Understand enforcement action taken by the UN Security Council pursuant to
Chapter VII of the UN Charter ("exception #1").

C.
 Understand the "inherent right of self-defense" as found in Article 51 of the UN
Charter ("exception #2").

## Ii.  Introduction

A.
 General. There are a variety of internationally-recognized legal bases for the use of
force in relations between States, found in both customary and treaty law.  Generally
speaking, however, modern *jus ad bellum* (the law governing a State's resort to
force) is reflected in the United Nations (UN) Charter.  The UN Charter provides two bases for the resort to force: Chapter VII enforcement actions under the auspices of the UN Security Council and self-defense pursuant to Article 51 (which governs acts of both individual and collective self-defense).
B.
Policy and Legal Considerations.

1.
Before committing U.S. military force abroad, decision-makers must make a
number of fundamental policy determinations.  The President and the national civilian leadership must be sensitive to the legal, political, diplomatic, and economic factors inherent in a decision to further national objectives through the use of force. The legal aspects of such a decision, both international and
domestic, are of primary concern in this determination.  Any decision to
employ force must rest upon the existence of a viable legal basis in
international law as well as in *domestic* **law** (including application of the 1973
War Powers Resolution (WPR), Public Law 93-148, 50 U.S.C.  1541-1548).
This chapter will focus exclusively on the international legal basis for the use of force.
2.
Though these issues will normally be resolved at the national political level,
Judge Advocates (JAs) must understand the basic concepts involved in a
determination to use force abroad.  Using the mission statement provided by higher authority, JAs must become familiar with the legal justification for the mission and, in coordination with higher headquarters, be prepared to brief all local commanders on that legal justification.  This will enable commanders to better plan their missions, structure public statements, and conform the conduct of military operations to U.S. national policy.  It will also assist commanders in drafting and understanding mission-specific Rules of Engagement (ROE) which authorize the use of force consistent with national security and policy objectives.



3.
The JA must also remember that the success of any military mission abroad will
likely depend upon the degree of domestic support demonstrated during the
initial deployment and sustained operation of U.S. forces.  A clear, wellconceived, effective, and timely articulation of the *legal* basis for a
particular mission is essential to sustaining support at home and gaining
acceptance abroad.
C.
Article 2(4): The General Prohibition Against the Use of Force.
1.
The UN Charter mandates that all member States resolve their international
disputes peacefully,1 and requires that they refrain in their international relations
from the *threat or use of force* against the territorial integrity or political independence of any State.2  This ban on aggression, taken from Article 2(4) of
the UN Charter, is regarded as the heart of the UN Charter and the basic rule of
contemporary public international law.3  Complementing Article 2(4) is the
principle of non-intervention, which provides that the United Nations, and
implicitly all other States, must refrain from interference in other States'
internal affairs.4  Put simply, non-intervention stands for the proposition that
States must respect each other's *sovereignty*.
1 UN Charter, Article 2(3):  "All Members shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered."  The UN Charter is reprinted in the Documentary Supplement.


2 UN Charter, Article 2(4):  "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state . . . ."


4 UN Charter, Article 2(7):  "Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require

2.
American policy statements have frequently affirmed the principle of non
intervention, and it has been made an integral part of U.S. law through the
ratification of the Charters of the United Nations and the Organization of
American States (OAS),5 as well as other multilateral international agreements
which specifically incorporate non-intervention as a basis for mutual
cooperation. The emerging concept of **humanitarian intervention**, however,
has watered down the principle of non-intervention and respect for State sovereignty in circumstances when the State is unable or unwilling to avert a humanitarian catastrophe or is itself responsible for massive violations of
human rights against its citizens.6

## Iii.  The Lawful Use Of Force

A .  General. Despite the UN Charter's broad legal prohibitions against the use of force
and other forms of intervention, specific exceptions exist that justify a State's
recourse to the use of force or armed intervention.  While States have made numerous claims, using a wide variety of legal bases to justify a use of force, it is generally agreed that there are only two exceptions to the Article 2(4) ban on the threat or use of force: (1) actions authorized by the UN Security Council under Chapter VII of the UN Charter, and (2) actions that constitute a legitimate act of individual or collective

the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII."



5 Charter of the Organization of American States, Article 18:  "No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. The foregoing principle prohibits not only armed force but also any other form of interference or attempted threat against the personality of the State or against its political, economic and cultural elements."  Charter of the Organization of American States art. 18, Apr. 30, 1948, 119 UNTS 3, 2 UST
2394, *available at* http://www.oas.org/dil/treaties_A-41_Charter_of_the_Organization_of_American_
States.htm. *See also* Inter-American Treaty of Reciprocal Assistance (Rio Treaty), Art. 1:  "Parties formally condemn war and undertake in their international relations not to resort to the threat or the use of force in any manner inconsistent with the provisions of the Charter of the United Nations or this Treaty."
Inter-American Treaty of Reciprocal Assistance art. 1, Sept. 2, 1947, 62 Stat. 1681, 21 U.N.T.S. 77, available at http://www.oas.org/juridico/English/treaties/b-29.html.



6 See Report of the International Commission on Intervention and State Sovereignty, December 2001
("Where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international responsibility to protect.") The United States does not accept humanitarian intervention as a separate basis for the use of force; however, the United Kingdom has expressed support for it. See Lord Goldsmith, Attorney General, Iraq: Resolution 1441, para. 7 (Mar. 7, 2003) (secret memo to Prime Minister, released Apr. 28, 2005), *available at* http://www.number10.gov.uk/files/pdf/
Iraq%20Resolution%201441.pdf.


self-defense pursuant to Article 51 of the UN Charter and/or customary international law (CIL).7


## B. Un Enforcement Action (Chapter Vii).

1.
The UN Security Council. The UN Charter grants the UN Security Council a
powerful role in determining the existence of an illegal threat or use of force, and wide discretion in mandating or authorizing a response to such a threat or use of force (enforcement).  The unique role is grounded primarily in Chapter
VII of the UN Charter which demonstrates the Charter's strong preference
for collective responses to the illegal use of force over unilateral actions in
self-defense. Chapter V of the UN Charter establishes the composition and
powers of the Security Council. The Security Council includes five permanent
members (China, France, Russia, the United Kingdom, and the United States)
and ten non-permanent, elected members.  Article 24 states that UN members "confer on the Security Council primary responsibility for the maintenance of international peace and security" and, in Article 25, members "agree to accept and carry out the decisions of the Security Council in accordance with the present Charter."
2.
Chapter VII of the UN Charter, entitled "Action With Respect to Threats to
the Peace, Breaches of the Peace, and Acts of Aggression," gives the UN Security Council authority to label as illegal threats and uses of force, and then to determine what measures should be employed to address the illegal behavior.
Before acting, the Security Council must first, in accordance with Article
39, determine/label the existence of a threat to the peace, a breach of the
peace, or an act of aggression.  Provided it makes such a determination, the
UN Charter gives the Security Council the ability to do one of three things:  1)
make recommendations pursuant to Article 39; 2) mandate non-military measures (i.e., diplomatic and economic sanctions) pursuant to Article 41; or 3)
mandate military enforcement measures ("action by air, land, or sea forces")
pursuant to Article 42.

a.
Article 39, the same article whereby the Security Council performs its
"labeling" function, allows the Council to make non-binding


recommendations to maintain or restore international peace and security. Because Article 42 has not operated as intended (*see infra*), some have grounded UN Security Council "authorizations" to use military force in Article 39 (as non-binding permissive authorizations) vice Article 42 (as binding mandates).8



b.
Article 41 lists several non-military enforcement measures designed to
restore international peace and security.  These include "complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance
of diplomatic relations."  Article 41 measures are stated as a "decision" (mandate), binding on all UN members. Article 42 implies that Article
41 measures must be attempted (or at least considered) before the Security Council adopts any of the military measures available to it.

c.
Article 42 contemplated that the Security Council would be able to
mandate military action by forces made available to it under special
agreements with UN member States.  However, because no Article 43 special agreement has ever been made, Article 42 has not operated as envisioned. This means that the Security Council is unable to mandate military enforcement action in response to illegal threats or uses of force.
Consequently, military measures taken pursuant to Chapter VII are
fundamentally permissive, phrased by the Security Council in the
form of an *authorization* **to member States rather than a mandate**.
3.
UN Peacekeeping and Peace Enforcement Operations. In the absence of special
agreements between member States and the Security Council, UN peacekeeping operations enable the Security Council to carry out limited enforcement actions through member States on an *ad hoc*, voluntary basis. While these operations
were traditionally grounded in Chapter VI of the UN Charter, which deals with
peaceful means of settling disputes, today more peace operations are considered
peace enforcement operations and carry with them a Chapter VII authorization
from the Security Council.  The authorization that accompanies these operations
is usually narrowly worded to accomplish the specific objective of the peace operation. For example, UN Security Council Resolution (UNSCR) 794 (1992) authorized member States to use "all necessary means to establish, as soon as possible, a secure environment for humanitarian relief operations in Somalia."

4.
Regional Organization Enforcement Actions. Chapter VIII of the UN Charter recognizes the existence of regional arrangements among States that deal with such matters relating to the maintenance of international peace and security, as are appropriate for regional actions (Article 52).  Regional organizations, such
as the OAS, African Union, and the Arab League, attempt to resolve regional
disputes peacefully, before referral to the UN Security Council.  Regional
organizations do not, however, have the ability to unilaterally authorize the
use of force (Article 53). Rather, the Security Council may utilize the regional organization to carry out Security Council enforcement actions.  In
other words, regional organizations are subject to the same limitation on the use of force as are individual States.


## Iv. Self-Defense

A.
 Generally.
1.
The right of all nations to defend themselves was well-established in CIL prior
to adoption of the UN Charter. Article 51 of the Charter provides:
Nothing in the present Chapter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the UN until the Security Council has taken measures necessary to maintain international peace and security. . . .


2.
The questions that inevitably arise in conjunction with the UN Charter's
"codified" right of self-defense involve the scope of authority found therein. Does this right, as the language of Article 51 suggests, exist only *after* a State has suffered an "armed attack," and then only *until* the Security Council takes
effective action?  Did the UN Charter thus limit the customary right of selfdefense in such a way that eliminated the customary concept of anticipatory
self-defense (*see infra*) and extinguished a State's authority to act independently
of the Security Council in the exercise of self-defense?  Some in the
international community advocate a restrictive approach based on the text of Article 51. Others argue that the customary right of self-defense was not
extinguished by Article 51 of the UN Charter.
3.
Those in the international community who advocate a restrictive interpretive
approach to Article 51 argue that reliance upon customary concepts of selfdefense, to include anticipatory self-defense, is inconsistent with the clear
language of Article 51 and counterproductive to the UN goal of peaceful resolution of disputes and protection of international order.

4.
In contrast, some States, including the United States, argue that an expansive
interpretation of the UN Charter is more appropriate, contending that the
customary law right of self-defense (including anticipatory self-defense) is an
"inherent" right of a sovereign State that was not "negotiated" away under the
Charter. Because contemporary experience has demonstrated the inability of
the Security Council to deal effectively with acts and threats of aggression,
these States argue that, rather than artificially limiting a State's right of selfdefense, it is better to conform to historically-accepted criteria for the lawful use
of force, including circumstances which exist outside the "four corners" of the
Charter.

## B. Self-Defense Criteria: Necessary And Proportional.

1.
It is well-accepted that the UN Charter provides the essential framework of
authority for the use of force, effectively defining the foundations for a modern jus ad bellum. Inherent in modern *jus ad bellum* is the customary requirement
that all uses of force be both *necessary* and *proportional.*9


2.
In order to comply with the necessity criterion, States must consider the
exhaustion or ineffectiveness of peaceful means of resolution, the nature of
coercion applied by the aggressor State, the objectives of each party, and the likelihood of effective community intervention.  In other words, force should be viewed as a "last resort."
3.
In order to comply with the proportional force criterion, States must limit the
magnitude, scope, and duration of any use of force to that level of force which is
reasonably necessary to counter a threat or attack.10


## C. Types Of Self-Defense.



1.
 Individual Self-Defense. The inherent right of individual self-defense is the
most prototypical of the different types of self-defense that a State may rely on to justify a use of force. Within the bounds of both the UN Charter and
customary practice, the inherent right of individual self-defense has primarily
found expression in three recurring areas:  1) protection of a nation's territorial integrity; 2) protection of a nation's *political independence*; and 3) protection of
nationals and their property located abroad.  Judge Advocates must be familiar with these foundational issues, as well as basic concepts of self-defense, as they relate to overseas deployments and operations, such as the Chairman of the Joint
Chiefs of Staff (CJCS) Standing Rules of Engagement (SROE)11 and the
response to State-sponsored terrorism.

a.
Protection of Territorial Integrity. States possess an inherent right to
protect their national borders, airspace, and territorial seas.  No nation has
the right to violate another nation's territorial integrity, and force may be
used to preserve that integrity consistent with the customary and the Article 51 right of self-defense.
b.
Protection of Political Independence.  A State's political independence is a
direct attribute of sovereignty, and includes the right to select a particular form of government and its officers, the right to enter into treaties, and the right to maintain diplomatic relations with the world community.  The rights of sovereignty or political independence also include the freedom to
engage in trade and other economic activity.  Consistent with the
principles of the UN Charter and CIL, each State has the duty to respect the political independence of every other State.  Accordingly, force may be used to protect a State's political independence when it is threatened
and all other avenues of peaceful redress have been exhausted.
c.
Protection of Nationals. Customarily, a State has been afforded the right to protect its citizens abroad if their lives are placed in jeopardy and the
host State is either unable or unwilling to protect them.  This right is cited as the justification for non-combatant evacuation operations (NEO).12

i.
The protection of U.S. nationals was identified as one of the legal
bases justifying U.S. military intervention in both Grenada and Panama.  In each case, however, the United States emphasized that
protection of U.S. nationals, standing alone, did not necessarily provide the legal basis for the full range of U.S. activities undertaken in those countries. Thus, while intervention for the purpose of protecting nationals is a valid and essential element in certain uses of force, it cannot serve as an independent basis for continued U.S. military presence in another country after the mission of safeguarding U.S. nationals has been accomplished.


ii.
The right to use force to protect citizens abroad also extends to those
situations in which a host State is an active participant in the
activities posing a threat to another State's citizens (e.g., the government of Iran's participation in the hostage-taking of U.S.
embassy personnel in that country in 1979-81; and Ugandan President Idi Amin's support of terrorists who kidnapped Israeli
nationals and held them at the airport in Entebbe in 1976).
2.
 Collective Self-Defense. Also referred to in Article 51, the inherent right of
collective self-defense allows victim States to receive assistance from other States in responding to and repelling an armed attack.  To constitute a legitimate act of collective self-defense, all conditions for the exercise of an individual
State's right of self-defense must be met, along with the additional requirement
that **assistance must be requested by the victim State**. There is no recognized
right of a third-party State to unilaterally intervene in internal conflicts where the issue in question is one of a group's right to self-determination and there is no request by the *de jure* government for assistance.

a.
Collective Defense Treaties and Bilateral Military Assistance Agreements.
i.
Collective defense treaties, such as that of the North Atlantic Treaty
Organization (NATO); the Inter-American Treaty of Reciprocal Assistance (the Rio Treaty); the Security Treaty Between Australia, New Zealand, and the United States (ANZUS); and other similar agreements do not provide an international legal basis for the use of
U.S. force abroad, per se.  These agreements simply establish a commitment among the parties to engage in "collective self-defense"
as required by specified situations, and provide the framework through which such measures are to be taken.  From an international
law perspective, a legal basis for engaging in measures involving the use of military force abroad must still be established from other sources of international law extrinsic to these collective defense treaties (i.e., there still must be a justifiable need for collective self
defense or UN Security Council authorization to use force, rather a collective defense treaty fulfills the criteria for a request for assistance by a victim State as discussed above).


ii.
The United States has entered into bilateral military assistance
agreements with numerous countries around the world.  These are not defense agreements, and thus impose no commitment on the part of the United States to come to the defense of the other signatory State in any given situation. Moreover, such agreements, like collective defense treaties, also provide no intrinsic legal basis for the use of military force.


3.
 Anticipatory Self-Defense. As discussed above, some States embrace an
interpretation of the UN Charter that extends beyond the black letter language of Article 51, under the CIL principle of "anticipatory self-defense." Anticipatory self-defense justifies using force in anticipation of an "imminent" armed attack.  Under this concept, a State is not required to absorb the "first hit" before it can resort to the use of force in self-defense to repel an imminent attack.

a.
Anticipatory self-defense finds its roots in the 1837 Caroline case and
subsequent correspondence between then-U.S. Secretary of State Daniel Webster and his British Foreign Office counterpart, Lord Ashburton. Secretary Webster posited that a State need not suffer an actual armed attack before taking defensive action, but may engage in anticipatory selfdefense if the circumstances leading to the use of force are "instantaneous, overwhelming, and leaving no choice of means and no moment for deliberation." As with any form of self-defense, any use of force based on
the customary right of anticipatory self-defense must be both necessary and proportional.
b.
Because the invocation of anticipatory self-defense is fact-specific in
nature, and therefore appears to lack defined standards of application, it remains controversial in the international community.  Concerns over extension of anticipatory self-defense as a pretext for reprisal or preventive actions (i.e., the use of force before the coalescence of an actual threat) have not been allayed by contemporary use.  It is important
to note, however, that anticipatory self-defense serves as a foundational
element in the CJCS SROE, as embodied in the concept of "hostile
intent," which makes it clear to commanders that they do not, and should
not, have to absorb the first hit before their right and obligation to exercise self-defense arises.13


c.
Preemptive Use of Force. In the 2002 National Security Strategy (NSS),
the U.S. Government took a step toward what some view as a significant
expansion of use of force doctrine from anticipatory self-defense to preemption.14  This position was reinforced in the 2006 NSS, which
reaffirmed the doctrine of preemptive self-defense against "rogue states and their terrorist clients" who pose a threat to the United States based on their expressed desire to acquire and use weapons of mass destruction.15
The "Bush doctrine" of preemption basically re-cast the right of anticipatory self-defense based on a different understanding of
imminence. Thus, the NSS stated, "We must adapt the concept of
imminent threat to the capabilities and objectives of today's adversaries."
It concluded: "The greater the threat, the greater is the risk of inaction and the more compelling the case for taking action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's
attack."16


d.
A modern-day legal test for imminence, consistent with the above, was perhaps best articulated by Professor Michael Schmitt in 2003.  He stated that States may legally employ force in advance of an attack, at the point when (1) evidence shows that an aggressor has committed itself to an armed attack, and (2) delaying a response would hinder the defender's
ability to mount a meaningful defense.17
e.
Anticipatory self-defense, whether labeled anticipatory or "preemptive,"
must be distinguished from preventive self-defense. Preventive selfdefenseemployed to counter non-imminent threatsis clearly
illegal under international law.


D.  Self-Defense Against Non-State Actors. Up to now, this chapter has discussed armed
attacks launched by a State. Today, however, States have reasons to fear armed
attacks launched by non-state actors *from* a State.  The law is still grappling with this
reality. While the answer to this question may depend on complicated questions of
state responsibility, many scholars base the legality of cross border attacks
against non-state actors on whether the "host" State is *unwilling or unable* to
deal with the non-state actors who are launching armed attacks from within its
territory.18  Some scholars have posited that a cross border response into a "host"
State requires the "victim" State to meet a higher burden of proof in demonstrating the criteria that establish the legality of a State's use of force in self-defense.19


## Geneva Convention I: Wounded And Sick In The Field I. Objectives

A.  Understand the importance of GC I's protections for the wounded and sick in the
field.
B.
Recognize the beneficiaries of GC I's protections.
C.
Understand the obligations GC I imposes on the belligerents.

D.  Recognize the different status given to medical personnel and chaplains and the
implications of such status, including the protections they are afforded, and the difference between being retained vice being a prisoner of war.
E.
Understand the protections afforded to medical facilities/units/transports/aircraft.

F.
Recognize the distinctive emblems which enjoy the Convention's protections, as well
as the additional distinctive emblem introduced by AP III.

G.  Be aware of GC II, which protects the wounded, sick, and shipwrecked members of
the armed forces at sea.

H.  Be aware of the legal developments that AP I and AP II introduced for the wounded,
sick, and shipwrecked.


## Ii.  Introduction

A.
 Background.
1.
Henry Dunant's book "*A Memory of Solferino,*" published in 1859, served as a catalyst in Europe to discuss the treatment of wounded and sick on the
battlefield. a.
Led to 1863 Conference in Geneva.
b.
The Conference resulted in the 1864 Geneva Convention, which U.S.
ratified in 1882. Key provisions include:
i.
 Military ambulances and hospitals are neutral.
ii.
Medical personnel and Chaplains are neutral.  Repatriation is the
rule.


iii.  Wounded must be cared for. Repatriation if incapable of further
service and agree not to take up arms again.
2.
Updated in 1906 (followed shortly by the Xth Hague Convention of October 18,
1907, for the adaption to Maritime Warfare of the principles of the Geneva
Convention of 1906. The Xth Hague convention was replaced in 1949 by a new
Geneva Convention related to the shipwrecked (GC II). (See GC II, art. 58).
3.
Updated again in 1929, adding a new Geneva Convention related to POWs.
4.
Updated again in 1949, adding yet another Convention related to civilians (GC IV).
5.
Most recently updated in 1977 by AP I for *international* armed conflicts, and by AP II for *non-international* armed conflicts.
a.
The U.S. signed both AP I and AP II, but there is no indication that the U.S. will ratify them any time soon, especially since the U.S. has expressed its opposition to certain provisions.
b.
Despite the fact that the U.S. has not ratified these treaties, understanding
AP I and II is important for at least two reasons: (1) Certain provisions of AP I and AP II are considered customary international law, and therefore binding on the U.S.; and (2) many U.S. coalition partners have ratified AP I and II and therefore may have different legal obligations than the U.S.
during a combined operation.
c.
AP I, Part II, concerns "Wounded, sick and shipwrecked" in international
armed conflict.  It developed the protections and obligations contained within GC I and II in a number of ways, including:
i.
Defined the terms, which was not done in GC I and II;
ii.
Recognized that civilian medical personnel and units shall receive
the same protection as that formerly reserved for military medical personnel and units;

iii.  Confirmed and extended the humanitarian role of the civilian
population and of relief societies;
iv.  Extended the scope of the protection for medical transportation by
air by developing the procedures required to invoke this right;
v.
Introduced the right of families to be informed of the fate of their
relatives and developed the provisions concerning missing persons
and the remains of the deceased.

d.
AP II, Part III, concerns "Wounded, sick and shipwrecked" in noninternational armed conflict and supplements AP II, Part II (Humane Treatment).  This Part reiterates the essential substance of AP I, Part II,
but taking into account the particular context of *non-international* armed
conflict. It develops the protections and obligations contained within
Common Article 3, attempting to make explicit what were implicit in that article's very simple statements.
B.
Geneva Conventions - Scope of Application. The purpose of this section is to
provide a brief review of when the Geneva Conventions become applicable.  Students should consult the chapter on the Framework of the Law of War, elsewhere in this deskbook, for a more in-depth discussion.  When conducting a legal analysis applying the Geneva Conventions, one starting point for the analysis could be to answer the following two questions: (1) In what type of conflict are the parties engaged?; and (2) What type of person is the subject of the analysis? 1.
Geneva Trigger: What Type of Conflict?  All four Geneva Conventions of 1949
have "common articles," which are verbatim in each.  Common Article 2 , is singularly important in that it sets up all four Conventions with an "either/or" condition/trigger:

a.
Either it is an *international* armed conflict (IAC), in which case Common
Article 2 states that the Geneva Conventions apply in their entirety.
b.
Or it is a *non-international* conflict (NIAC), in which case Common
Article 3 states that, although the Geneva Conventions do not apply, there
are still certain minimum protections (discussed *infra*) which do apply.
c.
Note 1: Both IAC and NIACas suggested by their termsdepend upon
a state of armed conflict being attained.  If not attained, that is, if there is
no armed conflict, no part of the Conventions apply as a matter of law.
However, the U.S. may still apply the Conventions by policy, as discussed
below.
d.
Note 2: For States party to AP I, article 1(4) expands the scope of IAC to
"include armed conflicts which peoples are fighting against colonial
domination and alien occupation and against racist regimes in the exercise
of their right of self-determination."  This expansion is one of the reasons the U.S. has not ratified AP I.

e.
Note 3: For States party to AP II, article 1 restricts the scope of NIAC to
conflicts of a certain degree of intensity over that provided by Common
Article 3.1  The U.S. opposes this contraction of protection.
2.
Geneva Trigger: What Type of Person?  A legal analysis involving the Geneva
Conventions must not only inquire into the nature of the conflict (as discussed
above), but must also ask what is the type of person that is the subject of the
analysis?  Since each Convention, and parts of those Conventions, protect different types of persons, an understanding of the person's identity and role in
the armed conflict is required to determine their associated legal protections. a.
So, for instance, civilians are primarily protected by GC IV, while the protections governing a shipwrecked sailor would generally be found in GC II.
b.
The types of persons protected by GC I will be discussed below.
However, the point made here is that persons who do not fit into a GC I
category are not legally protected by that particular Convention, but might be protected by another. For example, a shipwrecked sailor, initially protected by GC II, who is sick or wounded is protected by GC I once put
ashore; once he recovers, he is protected as a POW by GC III.

3.
Even if the "Type of Conflict/Type of Person" analysis reveals that the
protections of the Geneva Conventions are not legally required, the lack of legal
protection does not prevent a policy judgment being made to provide the
protections/treatment anyway.  For instance, DoD Directive 2311.01E, the DoD
Law of War Program, states that U.S. Forces will "comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all
other military operations."

## C. Definitions.

1.
The term "**wounded and sick**" is not defined in GC I or II.  Concerned that any
definition would be misinterpreted, the drafters decided that the meaning of the
words was a matter of "common sense and good faith."2  However, AP I, art.
8(1), contains the following definition of "wounded" and "sick":  "Persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and who refrain from any act of hostility."
2.
 "**Shipwrecked**" is also not defined in GC II, though it includes shipwrecks
"from any cause and includes forced landings at sea by or from aircraft."  (GC
II, art. 12). AP I, art. 8(2) provides a more detailed definition of "shipwrecked"
to mean "persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft carrying them."


## D.  General Substantive Protections.

1.
NIAC and Common Article 3 Protections for the Wounded and Sick. Common Article 3, also known as the "Mini-Convention" because it alone provided protections in NIAC, does include some protections for the wounded and sick. a.
"Persons . . . placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria."  (Common Article 3, para. 1)
b.
"The wounded and sick shall be collected and cared for."  (Common
Article 3, para. (2))

c.
Recall that AP II also applies to NIAC.  For those nations which are
parties to AP II (the United States is not a party), the Protocol expands slightly the protection for the wounded and sick and those who aid them beyond that provided for in Common Article 3.


2.
IAC and Protections for the Wounded and Sick. In a Common Article 2
conflict, the full GC I (and GC II for those at sea) are applicable.  It is with these protections that the remainder of this chapter will be concerned.  The protections can be summarized as consisting of three pillars: a.
Treatment of the wounded and sick;
b.
Protections for personnel aiding the wounded and sick;
c.
Distinctive emblems/symbols to identify protected personnel, units, and
establishments.


## Iii. Categories Of Wounded And Sick

A.
 Protected Persons. Note that the title of GC IGeneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Fieldimplies that its application is limited to Armed Forces.  This is largely, though
not entirely, true. Article 13 sets forth those persons protected by GC I.  This article
is the same as GC III, art. 4; therefore, the analysis to determine whether the person
is protected by GC I is identical to the analysis of whether the person is entitled to POW status under GC III, art. 4.  Students should refer to the deskbook chapter on Geneva Convention III - Prisoners of War, for a more detailed discussion of these categories.

B.
 Other Persons. Wounded and sick persons who do not qualify under any of the
categories in GC I, art. 13, will be covered as civilians by GC IV. 1.
GC IV, art. 16, provides: "The wounded and sick, as well as the infirm, and
expectant mothers, shall be the object of particular protection and respect."

a.
This coverage of civilians is qualified by the following language in GC
IV, art. 16: "*As far as military considerations allow*, each Party to the
conflict *shall facilitate* the steps taken to search for the killed and wounded, to assist the shipwrecked and other persons exposed to grave
danger, and to protect them against pillage and ill-treatment" (emphasis added). This recognizes the fact that saving civilians is the responsibility of the civilian authorities rather than of the military. The military is not required to provide injured civilians with medical care in a combat zone.

However, once the military starts to provide treatment, the provisions of GC I apply.3



b.
It is U.S. policy that "[c]ivilians who are injured, wounded, or become sick as a result of military operations may be collected and provided initial medical treatment in accordance with theater policies."4
3.
AP I, art. 8(a), however, expressly includes civilians within its definition of
"wounded and sick." Though the U.S. is not bound by AP I, practitioners
should be wary of treating wounded and sick civilians in a manner different from wounded and sick combatants.  Given the GC IV protections and the
development of the law by AP I, as a practical matter, all wounded and sick,
military and civilian, in the hands of the enemy must be respected and protected. (*See also* FM 27-10, para. 208)
4.
The rules applicable to civilians connected with medical transports may vary
depending on whether such persons accompany the armed forces (GC III, art. 4.A.(4)), are members of the staff of voluntary aid societies either of a
belligerent State (GC I, art. 26) or of a neutral State (GC I, art. 27), or are civilians not otherwise protected by GC I or GC III (GC IV, art. 4).


## Iv. The Handling Of The Wounded And Sick

A.
 Respect and Protect (GC I, art. 12).

1.
General: "Members of the armed forces and other persons mentioned in the
following Article, who are wounded or sick, shall be *respected* and *protected* in all circumstances."  (GC I, art. 12, para. 1 (emphasis added))


2.
Respect: to spare, not to attack.  It is "unlawful for an enemy to attack, kill, ill treat or in any way harm a fallen and unarmed soldier."  (GC I Commentary at
135). The shooting of wounded soldiers who are out of the fight is illegal. Similarly, there is no lawful justification for "mercy killings."

3.
Protect: to come to someone's defense; to lend help and support.  The enemy
has an obligation to come to the aid a fallen and unarmed soldier and give him such care as his condition requires. (See GC I Commentary at 135)
4.
These duties apply "in all circumstances."  Military considerations do not
permit any lesser degree of treatment.
B.
Standard of Care. (GC I, art. 12). Protected persons "shall be treated **humanely** and
cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or
any other similar criteria."  (GC I, art. 12).  Thus the standard is one of humane treatment:  "[E]ach belligerent must treat his fallen adversaries as he would the
wounded of his own army." (GC I Commentary at 137)
C.
Order of Treatment.  (GC I, art. 12)
1.
No *adverse* **distinction** may be made in providing care, other than for medical
reasons. (GC I, art. 12). Medical personnel must make the decisions regarding medical priority on the basis of their medical ethics.  (*See also* AP I, art. 10)
a.
May not discriminate against wounded or sick because of "sex, race, nationality, religion, political opinions, or any other similar criteria."  (GC I, art. 12)
b.
Note the use of the term "adverse" permits favorable distinctions, e.g.,
taking physical attributes into account, such as children, pregnant women, the aged, etc.
2.
 "**Only urgent medical reasons** will authorize priority in the order of treatment
to be administered."  (GC I, art. 12). Designed to strengthen the principle of equal treatment articulated above. a.
Treatment is accorded using triage principles which provide the greatest
medical assets to those with significant injuries who may benefit from

treatment, while those wounded who will die no matter what, and those whose injuries are not life-threatening, are given lesser priority.

b.
The U.S. applies this policy at the evacuation stage, as well as at the
treatment stage.  Sick, injured, or wounded enemy are treated and evacuated through normal medical channels, but can be physically
segregated from U.S. or coalition patients.  Subject to the tactical situation and available resources, enemy personnel will be evacuated from the combat zone as soon as possible. Only those injured, sick, or wounded enemy who would run a greater health risk by being immediately evacuated may be temporarily kept in the combat zone.5

3.
 Triage Categories:6

a.
 Immediate. Condition demands immediate resuscitative treatment.
Generally the procedures are short in duration and economical in terms of
medical resources.  Example: control of a hemorrhage from an extremity.
[Note: NATO divides this category into two groups:  Urgent: quick short
duration life saving care, which is first priority; and Immediate: which
require longer duration care to save a life.]
b.
 Delayed. Treatment can be delayed for 8-10 hours without undue harm.
Examples:  Soft tissue injuries requiring debridement; maxillofacial
injuries without airway compromise; eye and central nervous system
injuries.


c.
 Minimal (or Ambulatory). Next to last priority for medical officer care;
but head of the line at the battle dressing station.  (Can be patched up and
returned to the lines in minutes.)  (Major difference with civilian triage.)

d.
 Expectant. Injuries are so extensive that even if they were the sole
casualty, survival would be unlikely.  Treatment will address pain and discomfort.
4.
The wounded and sick "shall not willfully be left without medical assistance
and care, nor shall conditions exposing them to contagion or infection be
created." (GC I, art. 12)
a.
The first prohibition stems from a recognition that wounded personnel,
who had not yet received medical treatment, were profitable subjects for
interrogation. During World War II, the Germans frequently delayed
medical treatment until after interrogation at their main aircrew interrogation center. Such conduct is now expressly forbidden.
b.
The second prohibition was designed to counter the German practice of
sealing off Russian POW camps once typhus or tuberculosis was
discovered.

## D.  Abandoning Wounded And Sick To The Enemy.  (Gc I, Art. 12)

1.
If, during a retreat, a commander is forced to leave behind wounded and sick, the commander is required to leave behind medical personnel and material to
assist in their care.

2.
"[A]s far as military considerations permit" - provides a limited military
necessity exception to this requirement.  Thus a commander need not leave behind medical personnel if such action will leave his unit without adequate medical staff.  Nor can the enemy refuse to provide medical care to abandoned enemy wounded on the grounds that the enemy failed to leave behind medical
personnel. The detaining power ultimately has the absolute respect and protect
obligation. (See GC I Commentary at 142)
E.
Search for Casualties. (GC I, art. 15)
1.
Search, Protection, and Care. (GC I, art. 15) a.
"At all times, and particularly after an engagement."  Parties have an
ongoing obligation to search for the wounded and sick as conditions
permit. The commander determines when it is possible to do so.  This mandate applies to all casualties, not just friendly casualties.
i.
The drafters recognized that there were times when military
operations would make the obligation to search for the fallen impracticable.  (*See* GC I Commentary at 151)
ii.
By way of example, U.S. policy during Operation Desert Storm was
not to search for casualties in Iraqi tanks or armored personnel
carriers because of concern about unexploded ordnance.

iii.
Similar obligations apply to maritime operations (GC II, art. 18).
"Following each naval engagement at sea, the belligerents are
obligated to take all possible measures, consistent with the security
of their forces, to search for and rescue the shipwrecked."7

b.
The protection requirement refers to preventing pillage of the wounded by
the "hyenas of the battlefield."
c.
Care refers to the requirement to render first aid.

d.
Note that the search obligation also extends to searching for the dead,
again *as military conditions permit*.

2.
Suspensions of Fire and Local Agreements.  (GC I, art. 15)
a.
Suspensions of fire are agreements calling for ceasefires that are
sanctioned by the Convention to permit the combatants to remove, transport, or exchange the wounded, sick and the dead.  Such exchanges of
wounded and sick between parties did occur to a limited extent during World War II.  (See GC I Commentary at 155)
b.
Suspensions of fire were not always possible without negotiation and, sometimes, the involvement of staffs up the chain of command.
Consequently, local agreements, an innovation in the 1949 Convention to
broaden the practice of suspensions of fire by authorizing similar
agreements at lower command levels, are sanctioned for use by local onscene commanders to remove or exchange wounded and sick from a besieged or encircled area, as well as the passage of medical and religious
personnel and equipment into such areas.  GC IV, art. 17, contains similar
provisions for civilian wounded and sick in such areas.  It is this type of agreement that was used to permit the passage of medical supplies to the city of Sarajevo during the siege of 1992.

## F. Identification Of Casualties. (Gc I, Arts. 16-17)

1.
Parties are required, as soon as possible, to record the following information
regarding the wounded, sick, and the dead:  name, identification number, date of birth, date and place of capture or death, and particulars concerning wounds, illness, or cause of death.

2.
Forward the information to the Information Bureau required by GC III, art. 122.
Information Bureaus are established by Parties to the conflict to transmit and to
receive information/personal articles regarding Prisoners Of War to/from the International Committee of the Red Cross' (ICRC's) Central Tracing Agency.
The U.S. employs the National Prisoner of War Information Center (NPWIC) in this role.

3.
In addition, Parties are required to forward the following information and
materials regarding the dead: a.
 Death certificates.

b.
 Identification disc.
c.
Important documents, e.g., wills, money, etc., found on the body.
d.
Personal property found on the body.
4.
Handling of the Dead. a.
Examination of bodies (a medical examination, if possible) is required to confirm death and to identify the body.  Such examinations can play a dispositive role in refuting allegations of war crimes committed against individuals. Thus, they should be conducted with as much care as
possible.
b.
No cremation (except for religious or hygienic reasons).

c.
 Honorable burial. Individual burial is strongly preferred; however, there is
a military necessity exception which permits burial in common graves, e.g., if circumstances, such as climate or military concerns, necessitate it. (See GC I Commentary at 177)
d.
Mark and record grave locations.
G.
Voluntary Participation of Local Population in Relief Efforts.  (GC I, art. 18)
1.
Commanders may appeal to the charity of local inhabitants to collect and care
for the wounded and sick. Such actions by the civilians must be voluntary.
Similarly, commanders are not obliged to appeal to the civilians.
2.
Spontaneous efforts on the part of civilians to collect and care for the wounded and sick are also permitted.
3.
Ban on the punishment of civilians for participation in relief efforts. This provision arose from the fact that the Germans prohibited German civilians
from aiding wounded airmen.
4.
Continuing obligations of occupying power. Thus, the occupant cannot use the
employment of civilians as a pretext for avoiding their own responsibilities for
the wounded and sick. The contribution of civilians is only incidental.  (See GC I Commentary at 193)
5.
Civilians must also respect the wounded and sick.  This is the same principle discussed above (GC I, art. 12) vis-a-vis armed forces.  This is the only article of the Convention that imposes a duty directly on civilians.  (See GC I Commentary at 191)

## V.  Status And Protection Of Personnel Aiding The Wounded And Sick

A.
 There are **three categories** of persons who are protected for their work in aiding the
wounded and sick.

1.
 First category: Medical personnel *exclusively engaged* in the search for, or the
collection, transport or treatment of the wounded or sick, or in the prevention of
disease; staff exclusively engaged in the administration of medical units and establishments; chaplains attached to the armed forces (GC I, art. 24); and
personnel of national Red Cross/Red Crescent Societies and other recognized relief organizations (GC I, art. 26).

a.
Respect and protect "in all circumstances." (GC I, art. 24).  This means
that they must not knowingly be attacked, fired upon, or unnecessarily
prevented from discharging their proper functions. The accidental killing or wounding of such personnel, due to their presence among or in proximity to combatant elements actually engaged, by fire directed at the latter, gives no just cause for complaint.  (FM 27-10, para. 225)
b.
 Status upon capture: **Retained Personnel**, not POWs.  (GC I, art. 28)
i.
This was a new provision in the 1949 convention. The 1864 and
1906 conventions required immediate repatriation.  The 1929 convention also required repatriation, absent an agreement to retain medical personnel.  During World War II, the use of these agreements became extensive, and very few medical personnel were repatriated. Great Britain and Italy, for example, retained 2 doctors, 2 dentists, 2 chaplains, and 12 medical orderlies for every 1,000
POWs.


ii.
The 1949 convention institutionalized this process.  Some
government experts proposed making medical personnel regular POWs, the idea being that wounded POWs prefer to be cared for by
their countrymen who speak the same language.  The other camp, favoring repatriation, cited the traditional principle of inviolability
that medical personnel were non-combatants.  What resulted was a compromise: medical personnel were to be repatriated, but if needed to treat POWs, they were to be retained and treated at least as well as POWs.  (See GC I Commentary at 238-40)


iii.  Note that medical personnel may only be retained to treat POWs.
Under no circumstances may they be retained to treat enemy personnel. While the preference is for the retained persons to treat POWs of their own nationality, the language is sufficiently broad to
permit retention to treat any POW. (See GC I Commentary at 241)
c.
Repatriation of Medical Personnel.  (GC I, arts. 30-31)
i.
Repatriation is the rule; retention the exception.  Medical personnel
are to be retained only so long as required by the health and spiritual needs of POWs and then are to be returned when retention is not indispensable.8

ii.
GC I, art. 31, states that selection of personnel for return should be
irrespective of race, religion or political opinion, preferably according to chronological order of capturefirst-in/first-out approach.


iii.  Parties may enter special agreements regarding the percentage of
personnel to be retained in proportion to the number of prisoners and
the distribution of the said personnel in the camps.  The U.S. practice
is that retained persons will be assigned to POW camps in the ratio of 2 doctors, 2 nurses, 1 chaplain, and 7 enlisted medical personnel
per 1,000 POWs.  Those not required will be repatriated.9

d.
Treatment of Medical Personnel.  (GC I, art. 28)

i.
Medical personnel and chaplains may only be required to perform
medical and religious duties.

ii.
They will receive at least all benefits conferred on POWs, e.g., pay,
monthly allowances, correspondence privileges.
iii.  They are subject to camp discipline.


e.
 Relief. Belligerents may relieve doctors retained in enemy camps with
personnel from the home country.  (GC I, art. 28).  During World War II some Yugoslavian and French doctors in German camps were relieved. (See GC I Commentary at 257)
f.
Continuing obligation of detaining power (GC I, art. 28).  The detaining
power is bound to provide, free of charge, whatever medical attention the POWs require.

2.
 Second category: *Auxiliary* medical support personnel of the Armed Forces.
(GC I, arts. 25 and 29) a.
These are personnel who have received special training in other medical
specialties (e.g., orderlies, stretcher bearers) in addition to performing
other military duties.  (While Article 25 specifically refers to nurses, nurses are Article 24 personnel if they meet the "exclusively engaged"
criteria of that article.)

b.
Respect and protect: when acting in their medical capacity.  (GC I, art. 25)
c.
Status upon capture: POWs; however, must be employed in medical
capacity insofar as a need for their special training arises.  (GC I, art. 29)
d.
Treatment.  (GC I, art. 29)
i.
When not performing medical duties, shall be treated as POWs.
ii.
When performing medical duties, they remain POWs, but receive
treatment under GC III, art. 32 as retained personnel; however, they are not entitled to repatriation.

iii.  Auxiliaries are not widely used.10


iv.  The U.S. Army does not have any personnel who *officially* fall into
the category identified in Article 25.11


3.
Third category: Personnel of aid societies of neutral countries.  (GC I, art. 27
and 32)
a.
Nature of assistance:  procedural requirements.  (GC I, art. 27) i.
Consent of neutral government.
ii.
Consent of party being aided.
iii.
Notification to adverse party.


b.
Retention prohibited: must be returned "as soon as a route for their return
is open and military considerations permit."  (GC I, art. 32)

c.
Treatment pending return: must be allowed to perform medical work.  (GC I, art. 32)

## Vi. Medical Units And Establishments

A.
 Protection.
1.
Fixed Establishments and Mobile Medical Units.  (GC I, art. 19)
a.
May not be attacked, provided they do not abrogate their status.
b.
Commanders are encouraged to situate medical units and establishments
away from military objectives.  *See also* AP I, art. 12, which states that
medical units will, in no circumstances, be used to shield military objectives from attack.

c.
If these units fall into the hands of an adverse party, medical personnel
will be allowed to continue caring for wounded and sick, as long as the captor has not ensured the necessary care.

d.
GC I does not confer immunity from search by the enemy on medical units, establishments, or transports.  (FM 27-10, para. 221)
2.
Discontinuance of Protection. (GC I, art. 21)
a.
Medical units/establishments lose protection if committing "acts harmful to the enemy."  Acts harmful to the enemy are not only acts of warfare
proper, but also any activity characterizing combatant action, such as
setting up observation posts, or the use of the hospital as a liaison center
for fighting troops. (See FM 27-10, para. 258). Other examples include using a hospital as a shelter for combatants, or as an ammunition dump.
(See GC I Commentary at 200 - 201)
b.
Protection ceases only after a warning has been given, and it remains
unheeded after a reasonable time to comply.  A reasonable time varies
depending on the circumstances, e.g., no time limit would be required if fire is being taken from the hospital.  (See GC I Commentary at 202)
c.
AP I, art. 13, extends this same standard to civilian hospitals.
3.
 Conditions not depriving medical units and establishments of protection:  (GC
I, art. 22)

a.
Unit personnel armed for their own defense against marauders and those violating the law of war, e.g., by attacking a medical unit.  Medical
personnel thus may carry small arms, such as rifles or pistols for this purpose. In contrast, placing machine guns, mines, LAAWS, etc., around
a medical unit **would** cause a loss of protection.12
b.
 Self-Defense Defined. Although medical personnel may carry arms for self-defense, they may not employ such arms against enemy forces acting in conformity with the law of war.  These arms are for their personal defense and for the protection of the wounded and sick under their charge against persons violating the law of war.  Medical personnel who use their arms in circumstances not justified by the law of war expose themselves to penalties for violation of the law of war and, provided they have been given due warning to cease such acts, may also forfeit the protection of the medical unit or establishment of which they form part or which they are protecting. (See FM 27-10, para. 223)
c.
Unit guarded by sentries. Normally medical units are guarded by their own personnel. It will not lose its protection, however, if a military guard attached to a medical unit guards it.  These personnel may be regular

members of the armed force, but they may only use force in the same circumstances as discussed in the previous paragraph.13

d.
Small arms and ammunition taken from wounded may be present in the
unit. However, such arms and ammunition should be turned in as soon as practicable and, in any event, are subject to confiscation.  (FM 27-10, para. 223)
e.
Presence of personnel from the veterinary service.
f.
Provision of care to civilian wounded and sick.
B.
Disposition of Captured Buildings and Material of Medical Units and Establishments.
1.
Mobile Medical Units. (GC I, art. 33)

a.
Material of mobile medical units, if captured, need not be returned.  This
was a significant departure from the 1929 Convention which required
mobile units to be returned.
b.
But captured medical material must be used to care for the wounded and
sick. First priority for the use of such material is the wounded and sick in the captured unit.  If there are no patients in the captured unit, the material may be used for other patients.14


2.
Fixed Medical Establishments.  (GC I, art. 33)
a.
The captor has no obligation to restore this property to the enemyhe can maintain possession of the building, and its material becomes his property. However, the building and the material must be used to care for wounded and sick as long as a requirement exists.
b.
Exception:  "in case of urgent military necessity," they may be used for
other purposes.

c.
If a fixed medical establishment is converted to other uses, prior arrangements must be made to ensure that wounded and sick are cared for. Medical material and stores of both mobile and fixed establishments "shall
not be intentionally destroyed." No military necessity exception.

## Vii. Medical Transportation

A.
 Medical VehiclesAmbulances.  (GC I, art. 35)
1.
Respect and protect: Medical vehicles may not be attacked if performing a medical function.
2.
These vehicles may be employed permanently or temporarily on such duties,
and they need not be specially equipped for medical purposes.  (See GC I
Commentary at 281).  As ambulances are not always available, any vehicles may be adapted and used temporarily for transport of the wounded.  During that time they will be entitled to protection, subject to the display of the distinctive emblem.  Thus military vehicles going up to the forward areas with ammunition may bring back the wounded, with the important reservation the emblem must be detachable, e.g., a flag, so that it may be flown on the downward journey.
Conversely military vehicles may take down wounded and bring up military supplies on the return journey. The flag must them be removed on the return journey.
3.
Key issue for these vehicles is the display of the distinctive emblem, which
accords them protection.

a.
Camouflage scenario:  Belligerents are only under an obligation to respect
and protect medical vehicles so long as they can identify them.
Consequently, absent the possession of some other intelligence regarding
the identity of a camouflaged medical vehicle, belligerents would not be under any obligation to respect and protect it.15

b.
Display the emblem only when the vehicle is being employed on medical
work. Misuse of the distinctive symbol is a war crime.  (See FM 27-10 at para. 504)
4.
Upon capture, these vehicles are "subject to the laws of war."
a.
Captor may use the vehicles for any purpose.  However, the *material* of
mobile medical units falling into the hands of the enemy must be used
only for the care of the wounded and sick, and does not constitute war booty, until GC I ceases to be operative. (See FM 27-10, para. 234)
b.
If the vehicles are used for non-medical purposes, the captor must ensure proper care of the wounded and sick they contained, and, of course, ensure that the distinctive markings have been removed.
B.
Medical Aircraft. (GC I, art. 36)
1.
Definition: Aircraft exclusively employed for the removal of wounded and sick
and for the transport of medical personnel and equipment.
2.
 Protection. a.
Marked with protected emblem.
b.
 However, **protection ultimately depends on an agreement**: medical
aircraft are not to be attacked if "flying at heights, times and on routes specifically agreed upon between the belligerents."  (GC I, art. 36). The differing treatment accorded to aircraft, as opposed to ambulances, is a function of their increased mobility and consequent heightened fears about their misuse.  Also the speed of modern aircraft makes identification by
color or markings useless.  Only previous agreement could afford any real safeguard.
c.
Without such an agreement, belligerents use medical aircraft at their own risk.16


Panamanian paramilitary forces (DIGBATS) during Operation Just Cause.  CENTER FOR ARMY LESSONS
LEARNED, OPERATION JUST CAUSE: LESSONS LEARNED, p. III-14, (October 1990). By contrast, in the

d.
Aircraft may be used permanently or temporarily on a medical relief
mission; however, to be protected it must be used "exclusively" for a medical mission during its relief mission.  (See GC I Commentary at 289). This raises questions as to whether the exclusivity of use refers to the
aircraft's entire round trip or to simply a particular leg of the aircraft's
route. The point is overshadowed, however, by the ultimate need for an agreement in order to ensure protection.  The GC I Commentary also says
"exclusively engaged" means flying without any armament.17

e.
Reporting information acquired incidentally to the aircraft's humanitarian
mission does not cause the aircraft to lose its protection.  Medical personnel are responsible for reporting information gained through casual
observation of activities in plain view in the discharge of their duties.  This does not violate the law of war or constitute grounds for loss of protected
status. For example, a Medevac aircraft could report the presence of an enemy patrol if the patrol was observed in the course of their regular
mission and was not part of an information gathering mission outside their
humanitarian duties.
f.
Flights over enemy or enemy-occupied territory are prohibited unless
agreed otherwise.
3.
Summons to land. a.
Means by which belligerents can ensure that the enemy is not abusing its
use of medical aircraft**must be obeyed**.
b.
Aircraft must submit to inspection by the forces of the summoning Party.


Falklands each of the hospital ships (four British and two Argentinean) had one dedicated medical aircraft with Red Cross emblems.  Radar ID was used to identify these aircraft because of visibility problems. Later it was done by the tacit agreement of the parties.  Both sides also used combat helicopters extensively, flying at their own risk.  No casualties occurred. SYLVIE-STOYANKA JUNOD, PROTECTION
OF THE VICTIMS OF THE ARMED CONFLICT IN THE FALKLANDS 26-27 (1984).



17 *See also* AP I, art. 28(3); Dept. of Army, Field Manual 8-10-6, Medical Evacuation in a Theater of Operations - Tactics, Techniques, and Procedures, para. A-4 (Apr. 14, 2000) (the mounting or use of offensive weapons on dedicated Medevac vehicles and aircraft jeopardizes the protection afforded by the Conventions.  Offensive weapons include, but are not limited to, machine guns, grenade launchers, hand grenades, and light anti-tank weapons).

Geneva Convention I: Wounded and Sick in the Field

c.
If not committing acts contrary to its protected status, medical aircraft may
be allowed to continue.
4.
 Involuntary landing. a.
Occurs as the result of engine trouble or bad weather.  Aircraft may be
used by captor for any purpose. Materiel will be governed by the
provisions of GC I, arts. 33 and 34. (See GC I Commentary at 293)
b.
Personnel are Retained or POWs, depending on their status.
c.
Wounded and sick must still be cared for.
5.
The inadequacy of GC I, art. 36, in light of growth of use of medical aircraft,
prompted an overhaul of the regime in AP I (AP I, arts, 24 - 31). a.
Establishes three overflight regimes: i.
Land controlled by friendly forces (AP I, art. 25): No agreement
between the parties is required for the aircraft to be respected and
protected; however, the article recommends that notice be given, particularly if there is a SAM threat.

ii.
Contact Zone (disputed area) (AP I, art. 26):  Agreement required for
absolute protection. However, enemy is not to attack once aircraft
identified as medical aircraft.


iii.  Land controlled by enemy (AP I, art. 27):  Overflight agreement
required. Similar to GC I, art. 36(3) requirement.

b.
 Bottom line: *Known* medical aircraft shall be respected and protected
when performing their humanitarian functions.
c.
Optional distinctive signals, e.g., radio signals, flashing blue lights,
electronic identification, are all being employed in an effort to improve identification. (AP I, Annex I, Chapter 3)
C.
 Hospital ships. Military hospital ships, which are to be marked in the manner
specified by GC II, art. 43, may in no circumstances be attacked and captured but
65
Geneva Convention I: Wounded and Sick in the Field
must be respected and protected, *provided* their names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed.  (GC I, art. 20; GC II, art. 22)

1.
Hospital ships must be used exclusively to assist, treat, and transport the
wounded, sick, and shipwrecked. The protection to which hospital ships are entitled shall not cease unless they are used to commit, outside their humanitarian duties, acts harmful to the enemy.  (GC II, art. 34)
2.
Traditionally, hospital ships could not be armed, although crew members could
carry light individual weapons for the maintenance of order, for their own
defense, and that of the wounded, sick, and shipwrecked.  However, due to the
changing threat environment in which the Red Cross symbol is not recognized
by various hostile groups and actors as indicating protected status, the United States views the manning of hospital ships with defensive weapons systems, such as anti-missile defense systems or crew-served weapons to defend against
small boat threats, as prudent force protection measures, analogous to arming
crew members with small arms, and consistent with the humanitarian purpose of hospital ships and the duty to safeguard the wounded and sick.18

3.
GC II, art. 34 provides that hospital ships may not use or possess "secret codes"
as means of communication, so that belligerents could verify that hospital ships' communications systems were being used only in support of their humanitarian
function and not as a means of communicating information that would be harmful to the enemy.  However, subsequent technological advances in encryption and satellite navigation, while recognized as problematic, have not been specifically addressed by treaty.  As a practical matter, modern
navigational technology requires that the traditional rule prohibiting "secret
codes" be understood to not include modern encryption communication
systems.19

4.
Coastal Rescue Craft. Small craft employed by a State or by the officially recognized lifeboat institutions for coastal rescue operations are to be respected
and protected, so far as operational requirements permit.  (GC II, art. 27)
5.
Any hospital ship in a port which falls into the hands of the enemy is to be
authorized to leave the port.  (GC II, art. 29)

6.
Retained Personnel and Wounded and Sick Put Ashore. The religious, medical,
and hospital personnel of hospital ships retained to care for the wounded and sick are, on landing, subject to GC I. (GC II, art. 37).  Other forces put ashore become subject to GC I.  (GC II, art. 4)

## Viii. Distinctive Emblems

A.  Emblem of the Conventions and Authorized Exceptions.  (GC I, art. 38)
1.
 Red Cross. The distinctive emblem of the conventions.
2.
 Red Crescent. Authorized exception.
3.
Red Lion and Sun. Authorized exception employed by Iran, although it has
since been replaced by the Red Crescent.


4.
 Red Crystal. On 14 January 2007, the Third Additional Protocol to the 1949
Geneva Conventions (AP III) entered into force.  The United States is a party to AP III, which established an additional emblemthe red crystalfor use by
Governments and the International Red Cross and Red Crescent Movement. Under international law, the red crystal offers the same protection as the red
cross and the red crescent when marking military medical personnel, establishments and transport; the staff of national societies; staff, vehicles and
structures of the ICRC and the International Federation.
B.
 Unrecognized symbols. The most well-known is the red "Shield of David" of Israel.
While the 1949 diplomatic conference considered adding this symbol as an exception,
it was ultimately rejected.  Several other nations had requested the recognition of new emblems, and the conference became concerned about the danger of substituting national or religious symbols for the emblem of charity, which must be neutral.
There was also concern that the proliferation of symbols would undermine the universality of the Red Cross and diminish its protective value.  (*See* GC I
Commentary at 301).  In the various Middle East conflicts involving Israel and Egypt, however, the "Shield of David" has been respected.20

C.
Identification of Medical and Religious Personnel.  (GC I, art. 40)
1.
Note the importance of these identification mechanisms.  The two separate and
distinct protections given to medical and religious personnel are, as a practical matter, accorded by the armband and the identification card.21

a.
The armband provides protection from intentional attack on the battlefield.
b.
The identification card indicates entitlement to "retained person" status.
2.
Permanent medical personnel, chaplains, personnel of National Red Cross and
other recognized relief organizations, and relief societies of neutral countries.
(GC I, art. 40)
a.
Armband displaying the distinctive emblem.
b.
Identity card: U.S. uses DD Form 1934 for the ID cards of these personnel.
c.
Confiscation of ID card by the captor prohibited.  Confiscation renders
determination of "retained person" status extremely difficult.
3.
 Auxiliary personnel. (GC I, art. 41)
a.
Armband displaying the distinctive emblem in miniature.

b.
ID documents indicating special training and temporary character of
medical duties.
D.  Marking of Medical Units and Establishments. (GC I, art. 42). The distinctive flag
of the Convention (e.g., the Red Cross) may be hoisted only over such medical units
and establishments as are entitled to be respected under GC I.  It may be accompanied
by the national flag of the Party to the conflict.  However, if captured, the unit will fly
only the Red Cross flag.
E.
Marking of Medical Units of Neutral Countries.  (GC I, art. 43)
1.
Shall fly the Red Cross flag, national flag, and the flag of belligerent being assisted.

2.
If captured, will fly only the Red Cross flag and their national flag.

F.
Authority over the Emblem. (GC I, art. 39). Article 39 makes it clear that the use of
the emblem by medical personnel, transportation, and units is subject to "competent military authority."  The commander may give or withhold permission to use the emblem, and the commander may order a medical unit or vehicle camouflaged.  (See
GC I Commentary at 308). While the Convention does not define who is a competent military authority, it is generally recognized that this authority is held no lower than
the brigade commander (generally O-6) level.22

G.  The emblem of the red cross on a white ground and the words "Red Cross" or
"Geneva Cross" may not be employed, **either in time of peace or in time of war**,
except to indicate or to protect the medical units and establishments, the personnel and material protected by GC I and other Conventions dealing with similar matters. (GC I, art. 44 (which also lists exceptions to the rule).  *See also* AP I, art. 38, and AP II, art. 12, which prohibit the improper use of the distinctive emblems, such as the red cross)
H.  "The use by individuals, societies, firms or companies . . . of the emblem . . . shall be
prohibited at all times." (GC I, art. 53)

## For Further Reading:

A.  Joint Chiefs of Staff, Joint Publication 4-02, Health Service Support (31 October
2006).
B.
Dept. of Army, Field Manual 4-02.1, Combat Health Logistics (September 2001).

## Geneva Convention Iii: P**Risoners Of** War I. O**Bjectives**



A.
 Become familiar with the historic influences on the development of protections for
prisoners of war (POWs) during periods of armed conflict.
B.
Understand the legal definition of "prisoner of war," and the test for determining
when that status is conferred.
C.
Identify the law intended primarily for the benefit of:
1.
 Combatants during international armed conflict;
2.
 Combatants during internal armed conflict; and

3.
Detainees during ANY type of conflict.

## Ii.  History Of Prisoners Of War

A.  "In ancient times, the concept of "prisoner of war" 1 was unknown and the defeated
became the victor's 'chattel.'"2  The captive could be killed, sold, or put to work and
the discretion of the captor. No one was as helpless as an enemy prisoner of war.3



2 GC III Commentary at 4.



3 Probably the most famous medieval prisoner of war was England's Richard I of Robin Hood fame.  King Richard's ship sank in the Adriatic Sea during his return from the Third Crusade in 1192.  While crossing Europe in disguise, he was captured by Leopold, Duke of Austria.  Leopold and his ally, the Holy Roman Emperor, Henry VI, entered into a treaty with Richard on St. Valentine's Day, 1193, whereby England would pay them 100,000 in exchange for their king.  This amount then equaled England's revenues for five years.  The sum was ultimately paid under the watchful eye of Richard's mother, Eleanor of Aquitaine, and he returned to English soil on March 13, 1194. See M. Foster Farley, Prisoners for Profit:
Medieval Intrigue Quite often Focused upon Hopes of Rich Ransom, MIL. HISTORY (Apr. 1989), at 12.



Richard's confinement by Leopold did seem to ingrain some compassion for future prisoners of war he captured. Richard captured 15 French knights in 1198.  He ordered all the knights blinded but one.

B.
Greek, Roman, and European theologians and philosophers began to write on the
subject of POWs.  However, treatment of POWs was still by and large left to military commanders.4


C.
The American War of Independence.  For the colonists, it was a revolution.  For the
British, it was an insurrection.  To the British, the colonists were the most dangerous of criminals, traitors to the empire, and threats to state survival, and preparations were made to try them for treason.  In time, however, British forces begrudgingly
recognized the colonists as belligerents and no prisoner was tried for treason. Colonists that were captured were, however, subject to inhumane treatment and neglect. There were individual acts of mistreatment by American forces of the British
and Hessian captives; however, General Washington appears to have been sensitive
to, and to have had genuine concern for POWs.  He took steps to prevent abuse.5


D.  The first agreement to establish prisoner of war (POW) treatment guidelines was
probably in the 1785 Treaty of Friendship between the U.S. and Prussia.6
E.
American Civil War. At the outset, the Union forces did not view the Confederates
as professional Soldiers deserving protected status.  They were considered nothing more than armed insurrectionists.  As southern forces began to capture large numbers of Union prisoners, it became clear to Abraham Lincoln that his only hope for securing humane treatment for his troops was to require the proper treatment of Confederate Soldiers. President Lincoln issued General Orders No. 100,
"Instructions of the Government of Armies of the United States in the Field," known
as the Lieber Code, after its author, Francis Lieber. 1.
Although the Lieber Code went a long way in bringing some humanity to warfare, many traditional views regarding POWs prevailed.  For example,

Richard spared this knight one eye so he could lead his companions back to the French army.  This was considered an act of clemency at the time.  MAJOR PAT REID, PRISONER OF WAR (1984).



Article 60 of the Code provides: "a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoners."7


2.
Confederate policy called for captured black Soldiers to be returned or sold into slavery and for white Union officers serving with black troops to be prosecuted for "exciting servile insurrection."8  Captured blacks that could not prove they were free blacks were sold into slavery. Free blacks were not much better off. They were treated like slaves and forced to perform labor to support the Confederate war effort. In response to this policy, Article 58 of the Lieber Code stated that the Union would take reprisal for any black POWs sold into slavery by executing Confederate prisoners.  Very few Confederate prisoners were
executed in reprisal. However, Confederate Soldiers were often forced into
hard labor as a reprisal.

3.
The Union and Confederate armies operated a "parole" or prisoner exchange
system.9  The Union stopped paroling southern Soldiers for several reasons,
most notably its significant numerical advantage.  It was fighting a war of attrition and POW exchanges did not support that effort.  This Union decision may have impacted on the poor conditions in southern POW camps because of the additional strain on resources at a time when the Confederate army could barely sustain itself. Some historians point out that the Confederate POW guards were living in conditions only slightly better than their Union captives.10
4.
Captured enemy have traditionally suffered great horrors as POWs.  Most Americans associate POW maltreatment during the Civil War with the Confederate camp at Andersonville.  However, maltreatment was equally brutal

8 Vol. V, The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies at 807-808 (Gov. Printing Office 1880-1901).



9 The Dix-Hill Cartel was signed and ratified by both sides on the Civil War on July 22, 1862.  It lasted until 1863, failing primarily because of Confederate refusals to parole black POWs, and parolees returning to the battlefield too quickly. *See* HENRY P BEERS, THE CONFEDERACY, GUIDE TO THE
ARCHIVES OF THE GOVERNMENT OF THE CONFEDERATE STATES OF AMERICA 234 (GSA 1986).

10 REV. J. WILLIAM JONES, CONFEDERATE VIEW OF THE TREATMENT OF PRISONER (1876).



at Union camps. In fact, in the Civil War 26,486 Southerners and 22,576
Northerners died in POW camps.11



5.
Despite its national character and Civil War setting, the Lieber Code went a long way in influencing European efforts to create international rules dealing with the conduct of war.
F.
The first multilateral international attempt to regulate the handling of POWs occurred
in 1907 with the promulgation of the Hague Regulations Respecting the Laws and Customs of War on Land (HR).  Although the HR gave POWs a definite legal status and protected them against arbitrary treatment, the Regulations were primarily concerned with the methods and means of warfare rather than the care of the victims
of war. Moreover, the initial primary concern was with the care of the wounded and
sick rather than POWs.12
G.
 World War I. The Hague Regulations proved insufficient to address the treatment of
the nearly 8,000,000 POWs taken in WWI.  Germany was technically correct when it
argued that the Hague Regulations were not binding because not all participants were
signatories.13  According to the Regulations, all parties to the conflict had to be
signatories if the Regulations were to apply to any of the parties.  If one belligerent
was not a signatory, then all parties were released from mandatory compliance.  The result was the inhumane treatment of POWs in German control.
H.  Geneva Convention Relative to the Treatment of Prisoners of War in 1929. This
convention complemented the requirements of  the 1907 Hague Regulations and expanded safeguards for POWs.  This convention did not include the requirement that all parties to the conflict had to be signatories in order for the Convention to be applicable to the signatory parties



Officers and Soldiers while Prisoners of War in the Hands of the Rebel Authorities, S. RPT. NO. 68, 40th CONG., 3RD SESS. (1864), for a description of conditions suffered by POWs during the Civil War.
FLORY, *supra* note 2, at 19, n. 60 also cites the Confederate States of America, Report of the Joint Select Committee Appointed to Investigate the Condition and Treatment of Prisoners of War (1865).

I.
 World War II. Once again, all the participants in the war were not signatories to the
relevant treaties protecting POWs.  Arguably, this was a large contributing factor in the maltreatment of POWs during the war.  The gross maltreatment of POWs constituted a prominent part of the indictments preferred against Germans and
Japanese in the post World War II war crimes trials. 1.
The Japanese had signed, but not ratified, the 1929 Geneva Convention.  They
had reluctantly signed the treaty as a result of international pressure but
ultimately refused to ratify it.  The humane treatment of POWs was largely a western concept.  During the war, the Japanese were surprised at the concern for POWs.  To many Japanese, surrendering Soldiers were traitors to their own
countries and a disgrace to the honorable profession of arms.14  As a result, most
POWs in the hands of the Japanese during World War II were forced to undergo extremely inhumane treatment.
2.
In Europe, the Soviet Union had refused to sign the 1929 Geneva Convention
and therefore the Germans did not apply it to Soviet POWs.  In Sachsenhausen alone, some 60,000 Soviet POWs died of hunger, neglect, flogging, torture, and shooting in the winter of 1941-42. The Soviets retained German POWs in the
U.S.S.R. some twelve years after the close of hostilities.15  Generally speaking,
the regular German army, the Wehrmacht, did not treat American POWs too badly. The same cannot be said about the treatment Americans experienced at the hands of the German S.S. or S.D.16

3.
The post-World War II war crimes tribunals determined that international law
regarding the treatment of POWs had become customary international law
(CIL) by the outset of hostilities. Therefore, individuals could be held criminally liable for the mistreatment of POWs whether or not the perpetrators
or victims were from States that had signed the various international agreements
protecting POWs.17

J.
Geneva Convention Relative to the Treatment of Prisoners of War in 1949 (GC III). The experience of World War II resulted in the expansion and codification of the laws of war in four Geneva Conventions of 1949.  International armed conflict triggers the

full body and protections of the Geneva Conventions.18  In such a conflict, signatories must respect the Convention in "all circumstances."  This language means that parties must adhere to the Convention unilaterally, even if not all belligerents are signatories.
There are provisions that allow non-signatories to decide to be bound.19  Moreover, with the exception regarding reprisals, all parties must apply the rules of the treaty even if the protections are not being applied reciprocally.  The proper treatment of POWs has now risen to the level of CIL.

K.  1977 Additional Protocols I to the 1949 Geneva Conventions (AP I). The U.S. is not
a party to this Protocol. It creates no new protections for prisoners of war, but does,
however, have the effect, of expanding the definition of "status," that is who is
entitled to the POW protections in international armed conflict.20


## Iii. Prisoner Of War Status As A Matter Of Law

A.
 Important Terminology.
1.
Prisoners of War: A detained person as defined in GC III, art. 4.  (*See also* FM 27-10, para. 61)
2.
 Civilian Internees: 1. A civilian who is interned during armed conflict or occupation for security reasons, for protection, or because he or she has
committed an offense against the detaining power.  2. A term used to refer to persons interned and protected in accordance with the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949
(Geneva Convention).21


3.
 Retained personnel: Medical and religious personnel retained by the Detaining power with a view of assisting POWs.22

22 GC III, art. 33.

4.
 Detainees: 23  Any person captured, detained, held, or otherwise under the
control of DoD personnel (military, civilian, or contractor employee).  It includes any person held during operations other that war.  This is the default term to use when discussing persons who are in custody of U.S. armed forces.
5.
 Refugees: Persons who by reason of real or imagined danger have left home to
seek safety elsewhere.24

6.
 Dislocated civilian: Dislocated civilian is a generic term that includes a
displaced person, an evacuee, expellee, internally displaced person, a migrant, a
refugee, or a stateless person.25  A displaced person is a civilian who is
involuntarily outside the national boundaries of his or her country.26

B.
In order to achieve POW status, the individual must be the right kind of person in the
right kind of conflict. The question of status is enormously important.  There are two primary benefits of POW status.  First, POWs receive immunity for warlike acts (i.e., any acts of killing and breaking things are not criminal).  Second, POWs are entitled to all the rights, privileges, and protections under GC III.  One of those rights is that the prisoner is no longer a lawful target.
C.
The Right Kind of Conflict.
1.
Common Article 2:  The "Conventions shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties. . . ." (emphasis added). a.
Whether or not a conflict rises to the level of Common Article 2 is a
question of fact.27  Factors one should consider are:
i.
Has international recognition of the belligerents occurred (i.e are
they a "Party" within the framework of the treaty, recognized as such
by the international community, and able to enter into international agreements)?
ii.
Are there *de facto* hostilities?


iii.
Has the United States authorized the issuance of wartime awards and
pay? (This is not dispositive. Recall: Two Special Operations Forces Sergeants received the Congressional Medal of Honor in Somalia, yet it was clearly not a Common Article 2 conflict!)
iv.
Terrorist networks and organizations generally will not qualify as a
"Party" within the meaning of Common Article 2 of the Geneva Conventions. Terrorist organizations by their very nature are 1) considered by the international community as illegitimate groups not qualified to be a Party to the Conventions, and 2) generally either declare explicitly, or implicitly through their actions, that they will not abide by the rules of CIL or of the Conventions.

v.
This analysis seems to have been part of the rationale of the U.S.
position stated in a 7 February 2002 Presidential Memorandum.  The official U.S. position was that the al-Qaida network was not a state
party to the Geneva Conventions; it was a foreign terrorist group not entitled to any protections under the LOAC.  This policy was
modified on 7 July 2006 in a memo from Deputy Secretary of
Defense.28  While al Qaida is still not a party to the Geneva
Conventions, it is now U.S. policy that all detainees captured in the Global War on Terrorism will be afforded the protections of Common Article 3 of the 1949 Conventions. 29



v. The status of Taliban fighters required a slightly different analysis. The same Presidential memo recognized Afghanistan as a
Party to the convention and that the Geneva Conventions would apply with the conflict against Afghanistan.  The President
determined, however that while the conflict with Afghanistan was a CA2 conflict, the individual Taliban detainees were not entitled to
POW status.30  This was because the Taliban fighters did not belong
to one of the four categories of combatants entitled to POW status as
detailed in Art. 4 of GC III.31

b.
AP I expands the definition of international armed conflict to include
conflicts against racist regimes, colonial domination, and alien
occupation.32  It is important to understand that the Geneva Conventions
were drafted by military powers with European heritage.  Many of the
drafters of the Protocols were so called-third world countries with a
colonial history. They wanted to insure international law protections, primarily combatant immunity, were extended to their forces.
2.
Common Article 3. This article contains minimal protections, which does not include combatant immunity.  Protections are limited to internal armed conflicts. Though not defined in the article, armed conflict is something more
than mere riots or banditry.  There is no absolute test as to what constitutes armed conflict, but a significant factor is whether the government uses its armed forces in response to the conflict.  Note that the United States position is that all



31 *Id.* As the Taliban have described themselves as a militia, rather than the armed forces of Afghanistan, we begin with GPW's requirements for militia and volunteer corps under Article 4(A)(2).... First, there is no organized command structure whereby members of the Taliban militia report to a military commander who takes responsibility for the actions of his subordinates....Second, there is no indication that the Taliban militia wore any distinctive uniform or other insignia that served as a "fixed distinctive sign recognizable at a distance."... Third, the Taliban militia carried arms openly....Finally, there is no indication that the Taliban militia understood, considered themselves bound by, or indeed were even aware of, the Geneva Conventions or any other body of law. Indeed, it is fundamental that the Taliban followed their own version of Islamic law and regularly engaged in practices that flouted fundamental international legal principles.

DoD personnel will adhere to Common Article 3 standards in all types of armed conflict.  (See DoDD 2310.01E)


a.
AP II tends to narrow the scope of Common Article 3.  It defines armed
conflict whereas the Common Article 3 does not.  Unlike Common Article 3, it also requires that to receive the protection of AP II, an armed force
must be under responsible command and exercise control over some
territory.33  This narrowing has the effect of excluding some from the
protections of Common Article 3.  Again, keeping in mind the drafters' perspective, a newly established State with limited armed forces and
resources might be less likely to want to extend protections to revolutionary powers. Some developing nations expressed concern that
the super powers of the time, namely the U.S. and U.S.S.R., might, as a subterfuge for intervention, assert that they needed to become involved in
the internal conflict to come to the aid of the insurgents pursuant to Common Article 3.
b.
Although the United States is not a party to either Additional Protocol I or
II, the United States recognizes that numerous articles in both Protocol I and II may reflect customary law; for example, President Obama in a fact sheet attached to an Executive Order (dtd. March 7, 2011), stated the
United States support for two important components of the international legal
framework that covers armed conflicts: all of Additional Protocol II and
Article 75 of Additional Protocol I to the 1949 Geneva Conventions.34

3.
War on Terrorism. More than a decade after September 11, 2001, There
remains great debate concerning the characterization of the conflict in
Afghanistan and in the GWOT. Clearly, the U.S. is in an armed conflict; the United States is using its military to fight armed groups.  The question is
whether it is an international armed conflict (Common Article 2; State vs.
State), or an armed conflict not of an international character (Common Article
3; internal), a combination of the two; or some other type of armed conflict. a.
Looking back to the Taliban, it seems clear that the U.S. was in an
international armed conflict with the commencement of Operation


Enduring Freedom (OEF) on October 7, 2001  While not recognized by 98% of the international community, the Taliban was the de facto government of Afghanistan since 1996, including at the commencement of OEF.35  State recognition is not a requirement for the application of the Geneva Conventions. However, when the OEF coalition forces defeated the Taliban regime, they lost control of Afghanistan and ceased to exist as the *de facto* government of Afghanistan.  With the new Afghan government headed by President Karzai firmly in place as the government of Afghanistan, any remaining armed conflict between the coalition forces and organized armed elements of the Taliban regime arguably could be characterized as an armed conflict of a non-international character (i.e., a Common Article 3 internal armed conflict).


b.
In regards to the al-Qaida foreign terrorist group, the characterization is
more complex.  Prior to September 11, 2001, operations by and against
terrorists were not traditionally treated as armed conflict (neither international nor non-international armed conflict).  Terrorists have been
treated as criminals and responses viewed as "law enforcement."  Any
military involvement was traditionally viewed as a military operation
other than war, and therefore was treated as operations below the armed conflict spectrum.  Clearly, the U.S. is in an "armed conflict" with al- Qaida; however, the armed conflict with al-Qaida does not fit neatly into the existing armed conflict paradigms.  Al-Qaida is not a State and
therefore any direct U.S. action versus al-Qaida network lacks the
requirement of two or more States actually involved in the conflict for there to be an international armed conflict.  Additionally, the noninternational armed conflict paradigm traditionally involved the concepts of "civil wars" or "internal conflicts."   Has the military action taken against al-Qaida been absorbed into the international armed conflict (Common Article 2) with the Taliban, or is the conflict with al-Qaida best described as an armed conflict not of an international character (Common
Article 3)?  In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the United
States Supreme Court ruled that Common Article 3 is binding within the conflict against al-Qaida.  If captured, any member of al-Qaida or other

entity fighting the United States will be given the protections of Common Article 3 per DoDD 2310.01E.36


## 5. Operation Iraqi Freedom (Oif).



a.
At the onset of hostilities between Iraq and the United States in March 2003, the United States unequivocally stated that the conflict with Iraq was a Common Article 2 conflict and that Iraqi Soldiers would be afforded POW protections pursuant to GC III.  Major combat operations continued until May 1, 2003, with the proclamation by President Bush that major combat operations in Iraq had ended.

b.
The issue of when the official occupation of Iraq began can be debated.
The Presidential proclamation, however, in conjunction with the firm control of Iraq by American and allied forces, clearly led to a state of occupation no matter how it was termed.  Therefore, the occupation triggering language found in Common Article 2 continued to be in force, and GC III protected captured members of the Iraqi army.
c.
The authority to capture Iraqi insurgents and foreign fighters in Iraq after
June 28, 2004 was documented in United Nations Security Council Resolution (UNSCR) 1546. This resolution, along with agreements between the United States and the interim Iraqi government, became the
legal basis for capturing personnel in Iraq until December 31, 2008.

## D.  The Right Kind Of Person.

1.
Once a conflict rises to the level of Common Article 2, parties should look to
GC III, art. 4 in order to determine who is entitled to POW status.  Traditionally, persons were only afforded POW status if they were members of the regular armed forces involved in an international armed conflict.  GC III also included, however, members of militias or resistance fighters belonging to a party to an international armed conflict if they met the following criteria:

a.
Being commanded by a person responsible for their subordinates;
36 DOD DIR. 2310.01E, *supra* note 23. Note the language in the memo as mirroring Common Article 3, that "application of the proceeding provisions shall not affect the legal status of the parties to a conflict"
Id.



b.
Having fixed distinctive insignia;37

c.
Carrying arms openly;38 and,
d.
Conducting their operations in accordance with the laws and customs of war.
2.
In addition, numerous other persons detained by military personnel are entitled
to POW status if "they have received authorization from the armed forces which they accompany."  (i.e., possess a GC identity card from a belligerent government).  Specific examples include:
a.
 Contractors;39

b.
 Journalists;40

c.
Civilian members of military aircraft crews;41

d.
Merchant marine and civil aviation crews;42



37 For a discussion of the uniform requirement, *see* Ex parte Quirin, 317 U.S. 1 (1942) and Mohamadali and Another v. Public Prosecutor (Privy Council, 28 July 1968), 42 I.L.R. 458 (1971). The first attempt to codify the uniform requirement necessary to receive POW status occurred during the Brussels Conference of 1874.



38 This term carrying arms openly does NOT require they be carried visibly.  However, the requirement rests upon the ability to recognize a combatant as just that.  AP I changes this requirement in a significant way.  Under GC III, a combatant is required to distinguish himself throughout military operations.  AP I, art. 44(3) only obligates a combatant to distinguish himself from the civilian population "while they are engaged in an attack or in a military operation preparatory to an attack, or in any action carried out with a view to combat." AP Commentary at 527.



Judge Advocates must recognize that with coalition operations, one may have to apply a different standard; our coalition partners may use AP I's criteria.  AP I only requires combatants to carry their arms openly in the attack and to be commanded by a person responsible for the organization's actions, comply with the laws of war, and have an internal discipline system.  Therefore, guerrillas may be covered.

39 GC III, art. 4(a)(4).



(journalist held for 23 days in Cambodia by the Viet Cong).

41 GC III, art. 4(a)(4).

e.
Persons accompanying armed forces (dependents);43 and,
f.
Mass Levies (Levee en Masse).44  To qualify these civilians must:
i.
Be in non-occupied territory;
ii.
Act spontaneously to the invasion;
iii.  Carry their arms openly; and,

iv.  Respect the laws and customs of war.
g.
This is NOT an all-inclusive list. One's status as a POW is a question of fact. One factor to consider is whether or not the individual is in possession of an identification card issued by a belligerent government. Prior to 1949, possession of an identification card was a prerequisite to POW status.

4.
Medical and religious personnel (Retained Personnel) receive the protections of
GC III.45  Additionally,

a.
Retained personnel are to be repatriated as soon as they are no longer
needed to care for other POWs.
b.
Of note, retained status is not limited to doctors, nurse, corpsman, etc.  It
also includes, for example, the hospital clerks, cooks, and maintenance
workers.46



44 See GC III, art. 4(a)(6); FM 27-10, para. 65, which states all males of military age may be held as POWs in an area in which a levee en masse operates.  GC III does not discriminate the right to detain by gender, and therefore females may be detained as well.

45 GC III, arts. 4(c) and 33.

5.
Persons whose POW status is debatable:47

a.
Deserters/Defectors;48

b.
Saboteurs;49

c.
Military advisors;50

d.
Belligerent diplomats;51

e.
Mercenaries52 (AP I, art. 47).



Status of Medical and Religious Personnel in International Law, JAG J. 41 (Sep-Oct-Nov 1965).



47 See Levie, *supra* note 6, at 82-84; Richard R. Baxter, So-Called 'Unprivileged Belligerency': Spies, Guerrillas, and Saboteurs, MIL. L. REV. BICENTENNIAL ISSUE 487 (1975)(Special Ed.); Albert J. Esgain and Waldemar A. Solf, The 1949 Geneva Convention Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and Deficiencies, MIL. L. REV. BICENTENNIAL ISSUE 303 (1975)(Special Ed.).

48 See Memorandum, HQDA, DAJA-IA, 22 January 1991, Subj: Distinction Between Defectors/Deserters and Enemy Prisoners of War.  *See also* Levie, *supra* note 6, at 77 - 78; James D. Clause, The Status of Deserters Under the 1949 Geneva Prisoner of War Convention, 11 MIL. L. REV. 15 (1961); L.B.

Schapior, *Repatriation of Deserters,* 29 BRIT. YB. INT'L L. 310 (1952).



49 Not entitled to status if at time of capture, the individual is dressed in civilian clothes and engaged in a sabotage mission behind enemy lines.  *See* Ex parte Quirin, 317 U.S. 1, 31 (1942). *See also* HOWARD S.

LEVIE, 59 INTERNATIONAL LAW STUDIES, PRISONERS OF WAR IN INTERNATIONAL ARMED CONFLICT 36
37 and 82-83(1977).



50 If a neutral nation sends a military advisor or some other representative that accompanies an armed force as an observer then that person, if taken into custody of the armed forces of the adverse Party, would not be considered a POW.  The military representative could be ordered out of, or removed from the theater of war. On the other hand, if the military representative takes part in the hostilities and acts as a "military advisor" and renders "military assistance to the armed forces opposing those of the belligerent Power into whose hands they have fallen, it could be argued that they fall within the ambit of Article 4(A) and that they are therefore entitled to prisoner-of-war status."  Levie, *supra* note 47, at 83-84.



51 If a belligerent diplomat, in addition to his political office, is a member of the regular armed forces or is accompanying the armed forces in the field in one of the categories included in GC III, art. 4(A), then he is subject to capture and to POW status.  Levie, *supra* note 47, at 83, 342n.

f.
U.N. personnel during U.N. peace missions.53

6.
Spies are not entitled to POW status (HR, art. 29, and AP I, art. 46).
E.
When POW's Status is in Doubt.

1.
Article 5, GC III: "Should any doubt arise as to whether persons, having
committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."
2.
 AR 190-854 provides guidance on how to conduct an Article 5 Tribunal.
a.
A General Court-Martial Convening Authority appoints the tribunal.
b.
There are to be three voting members, the president must be a field grade
officer, and one nonvoting recorder, preferably a Judge Advocate.
c.
The standard of proof is "preponderance of the evidence."  The regulation
does not place the burden of proof or production on either party.  The
tribunal should not be viewed as adversarial as the recorder need not be a judge advocate and there is no right to representation for the subject whose
status is in question.
d.
If a Combatant Commander has his own regulation or policy on how to
conduct an Article 5 Tribunal, the Combatant Commander's regulation would control. For example, see CENTCOM Regulation 27-13.

## Iv. Primary Protections Provided To P**Risoners Of** War A.  Protection "Top Ten."55

1.
 Humane Treatment. 56  (GC III, art. 13)
2.
Prohibition against medical experiments.  (GC III, art. 13)
3.
Protection from violence, intimidation, insults, and public curiosity. 57  (GC III,
art. 13)
4.
Equality of treatment.  (GC III, art. 16)
5.
Free maintenance and medical care.  (GC III, art. 15)

6.
Respect for person and honor (specific provision for female POWs included). (GC III, art. 14)
7.
No Reprisals. (GC III, art. 13)
8.
No Renunciation of Rights or Status.  (GC III, art. 7)
9.
The Concept of the Protecting Power, especially the ICRC.  (GC III, art. 8)


Conventions.  GC III Commentary at 140.  A good rule of thumb is to follow the "golden rule."  That is, to treat others in the same manner as you would expect to be treated or one of your fellow service members to be treated if captured.  In other words, if you would consider the treatment inhumane if imposed upon one of your fellow service members, then it probably would violate this provision.



10.  Immunities for warlike acts, but not for pre-capture criminal offenses, or
violations of the law of war.58


## B. Post-Capture Procedures

1.
Authority to detain can be expressly granted in the mission statement; implied
with the type of mission; or inherent under the self defense/force protection
umbrella.


2.
The protection and treatment rights, as well as the obligations begin ". . . [F]rom
the time they fall into the power of the enemy . . ."59  (GC III, art. 5)
3.
POWs can be secured with handcuffs (flex cuffs) and blindfolds, as well as
shirts pulled down to the elbows, as long as it is done humanely (cannot be for humiliation/intimidation purposes).

a.
Protect against public curiosity.


i.
Art. 13 does not *per se* prohibit photographing an POW.  The
prohibition extends to photographs that degrade or humiliate a POW. With respect to POWs, there is some value added in disseminating photographs since it gives family members assurance that their loved one is alive.  Bottom line: strict guidelines required.60



58 GC III does not specifically mention combatant immunity.  Rather, it is considered to be customary international law. Moreover, it can be inferred from the cumulative effect of protections within GC III. For example, Article 13 requires that prisoners not be killed, and Article 118 requires their immediate repatriation after cessation of hostilities.  Although Article 85 does indicate that there are times when prisoners of war may be prosecuted for precapture violations of the laws of the detaining power, the Commentary accompanying Article 85 limits this jurisdiction to only two types of crimes: a prisoner may be prosecuted only for (1) war crimes, and (2) crimes that have no connection to the state of war.  See Corn and Smidt, *supra* note 53 at n. 124.



59 During Desert Storm some Iraqi Commanders complained that the Coalition forces did not fight "fair"
because our forces engaged them at such distances and with such overwhelming force that they did not have an opportunity to surrender.  Additionally, some complained that they were merely moving into position to surrender.  However, the burden is upon the surrendering party make his intentions clear, unambiguous, and unequivocal to the capturing unit.



60 AR 190-8 provides: "Photographing, filming, and video taping of individual EPW, CI, and RP for other than internal Internment Facility administration or intelligence/counterintelligence purposes is strictly



ii.
This is in stark contrast to Iraq and North Vietnam's practice of
parading POWs before the news media.
b.
POW capture tags.  All POWs will, at the time of capture, be tagged using
DD Form 2745.61

4.
Property of Prisoners. (GC III, art. 18)

a.
Weapons, ammunition, and equipment or documents with intelligence value will be confiscated and turned over to the nearest intelligence unit.
(AR 190-8)
b.
POWs and retained personnel are allowed to retain personal effects such
as jewelry, helmets, canteens, protective mask and chemical protective garments, clothing, identification cards and tags, badges of rank and
nationality, and Red Cross brassards, articles having personal or sentimental value and items used for eating except knives and forks. 62

(See GC III, art. 18; AR 190-8)
c.
But what about captured persons not entitled to POW status? 63  (*See* GC
IV, art. 97)
5.
Rewards for the capture of POWs are permissible, but they must avoid even the
hint of a "wanted dead or alive" mentality.64



prohibited. No group, wide area or aerial photographs of POW, CI and RP or facilities will be taken unless approved by the senior Military Police officer in the Interment Facility commander's chain of command.  AR-190-8, *supra* note 52, para. 1-5(4)(d).



61 AR 190-8, *supra* note 52, para. 2-1.a.(1)(b), (c).  This provision is routinely overlooked, as noted in After Action Reviews from Operation Iraqi Freedom.



62 Ltr, HQDA, DAJA-IA 1987/8009, Subj:  Protective Clothing and Equipment for EPWs. *See also* GC
III Commentary at 166, n. 2.



63 GC IV, art. 97 essentially allows the military to seize, but not confiscate, personal property of those civilians protected by GC IV.  The difference is important.  Confiscate means to take permanently. Seizing property is a temporary taking.  Property seized must be receipted for and returned to the owner after the military necessity of its use has ended.  If the property cannot be returned for whatever reason, the seizing force must compensate the true owner of the property. See Elyce K.K. Santerre, From Confiscation to Contingency Contracting: Property Acquisition on or Near the Battlefield, 124 MIL L.

REV. 111 (1989), for a more detailed discussion of the distinction between, requisition, seizure, and confiscation of private property and when it is lawful to do each.

6.
What can I ask a POW? ANYTHING!! a.
All POWs are required to give: (GC III, art. 17)
i.
Surname, first name;
ii.
Rank;
iii.
Date of birth; and,


iv.
Serial number.
b.
What if an POW refuses to provide his rank?  Continue to treat as POW, but as of the lowest enlisted rank.65

c.
No torture, threats, coercion in interrogation (Art. 17, GC III).  It's not what you ask but how you ask it.66  See the chapter on Intelligence Law
and Interrogation Operations in the Operational Law Handbook for a more
detailed discussion.

d.
The U.S. military ID card doubles as the Geneva Conventions identification card. Note: Categories are I to V, which corresponds to respective rank. (GC III, art. 60)



Panama Operations: Offer of Reward (Dec. 20, 1989). This is distinct from a wanted "dead or alive" type award offer prohibited by the Hague Regulations.  *See* FM 27-10, para. 31 (interpreting HR, art. 23b to prohibit "putting a price upon an enemy's head, as well as offering a reward for an enemy 'dead or alive'").

65 GC III, art. 17, para. 2. *See also* GC III Commentary at 158-59.

## V. Pow Camp Administration And D**Iscipline**


A.
 Responsibility. (GC III, art. 12). The State (Detaining Power) is responsible for the
treatment of POWs.  POWs are not in the power of the individual or military unit that captured them. They are in the hands of the State itself, of which the individuals or
military units are only agents.67

B.
 Locations?
1.
Land only. (GC III, art 22). However, during the Falklands War, the British
temporarily housed Argentine POWs on ship while in transit to repatriation.
2.
Not near military targets.68  (GC III, art. 23). During the Falklands War, several
Argentine POWs were accidentally killed while moving ammunition away from their billets.


3.
POWs must be assembled into camps based upon their nationality, language,
and customs.  (GC III, art. 22) a.
Generally, cannot segregate prisoners based on religion or ethnic
background.69  However, segregation by these beliefs may be required
especially when they are a basis for the conflict.  Such as in Yugoslavia: Serbs, Croats, and Muslims; Rwanda: Hutus, Tutsis; and Iraq: Sunni and
Shia.


67 GC III Commentary at 128-29.

68 Iraq used U.S. and allied POWs during the Persian Gulf War as human shields in violation of GC III, arts. 19 and 23.  *See Iraqi Mistreatment of POWs*, DEP'T OF STATE DISPATCH, Jan. 28, 1991, at 56
(Remarks by State Department Spokesman Margaret Tutwiler).  *See also* DEP'T OF DEF., FINAL REPORT
TO CONGRESS: CONDUCT OF THE PERSIAN GULF WAR (April 1992), at 619 - 620.



69 GC III, art. 34. One of the most tragic events of religions discrimination by a detaining power for religious reasons was the segregation by the Nazis of Jewish-American POWs.  Several Jewish American Soldiers were segregated from their fellow Americans and sent to slave labor camps where "they were beaten, stared and many literally worked to death."  MITCHELL G. BARD, FORGOTTEN VICTIMS: THE
ABANDONMENT OF AMERICANS IN HITLER'S CAMPS (1994). *See also* Trial of Tanaka Chuichi and Two Others in UNITED NATIONS WAR CRIMES COMMISSION, XI LAW REPORTS OF WAR CRIMES TRIALS 62
(1949) (convicting Japanese prison guards, in part, for intentionally violating the religious practices of Indians of the Sikh faith).


b.
 Political beliefs. GC III, art. 38 encourages the practice of intellectual pursuit. However, the U.N. experience in POW camps demonstrated that pursuit of political beliefs can cause great discipline problems within a
camp.  In 1952, on Koje-do Island, riots broke out at the POW camps
instigated by North Korean POW communist activists.  Scores of prisoners sympathetic to South Korea were murdered by North Korean
POW extremist groups. During the rioting, POWs captured the camp commander, Brigadier General Dodd.70

C.
What Must Be Provided?
1.
Quarters equal to that provided to Detaining forces (GC III, art. 25); total
surface and minimum cubic feet.

2.
Adequate clothing considering climate.  (GC III, art. 27)
3.
 Canteen? 71  (GC III, art. 28)

4.
 Tobacco? 72  (GC III, art. 26)
5.
Recreation. (GC III, art. 38)
6.
 Religious accommodation.  (GC III, art. 34)



70 Dep't of the Army, Office of the Provost Marshall, Report of The Military Police Board No. 53-4, Collection and Documentation of Material Relating to the Prisoner of War Internment Program in Korea,
1950-1953 (1954).  *See also* WALTER G. HERMES, TRUCE TENT AND FIGHTING FRONT (1966), at 232-63;
The Communists War in POW Camps, Dep't of State Bulletin, Feb 6, 1953, at 273; Harry P. Ball, Prisoner and War Negotiations: The Korean Experience and Lesson, in 62 International Law Studies: The Use of Force, Human Rights and General International Legal Issues, Vol. II, 292- 322 (Lillich &
Moore, eds., 1980).



71 The U.S. does not provide POWs with a canteen, but instead provides each POW with a health and comfort pack.  Memorandum, HQDA-IP, 29 Oct. 94, Subj: Enemy Prisoner of War Health and Comfort Pack.



72 See Memorandum, HQDA-IO, 12 Sept. 94, Subj: Tobacco Products for Enemy Prisoners of War.
During Desert Storm, the 301st Military Police POW camp required 3500 packages of cigarettes per day. Operation Deserts Storm: 301st Military Police EPW Camp Briefing Slides, *available in* TJAGSA, ADIO
POW files. *See also* WILLIAM G. PAGONIS, MOVING MOUNTAINS: LESSONS IN LEADERSHIP AND
LOGISTICS FROM THE GULF WAR 10 (1992), for LTG Pagonis' views about being told he must buy tobacco for POWs.

7.
Food accommodation (GC III, arts. 26 and 34); if possible, utilize enemy food
stocks and let them prepare their own food.
8.
Copy of GC III in POWs own language. Copies are available at: www.icrc.org.
9.
Due process.  (GC III, arts. 99 - 108)
10.  Hygiene (GC III, art. 29); separate baths, showers and toilets must be provided
for women prisoners of war.

D.
 POW Accountability.73  (GC III, arts. 122 and 123)
1.
Capture notification - PWIS (Prisoner of War Information System).  This
system was utilized during Operations Desert Storm and Operation Uphold Democracy.  The PWIS is now known as the National Detainee Reporting Center (NDRC).

2.
 POW deaths. (GC III, arts. 120 and 121).  Any death or serious injury to a
POW requires an official inquiry.  Look to theater-specific SOPs to provide
additional guidance on the appointing authority and routing system for the investigation or inquiry into a POW death or serious injury.
4.
Reprisals against POWs are prohibited.  (GC III, art. 13)
E.
Transfer of POWs.  (GC III, arts. 46 - 48)
1.
Belligerent can only transfer POWs to nations which are parties to the
Convention.
2.
Detaining Power remains responsible for POW care.
a.
There is no such thing as a "U.N." or "coalition" POW.74



b.
To ensure compliance with the GC III, U.S. Forces routinely establish
liaison teams and conduct GC III training with allied forces prior to transfer POWs to that nation.75

F.
Complaints and Prisoners' Representatives.

1.
The primary rights and duties/oversight responsibilities of Prisoner
Representatives are set forth in the following articles of GC III: 57, 78-81, 98, 104, 107, 125, and 127.
2.
There is the potential for conflict of the Prisoner Representative duties with the Code of Conduct Senior Ranking Officer (SRO) requirement.76

3.
The SRO will take command, regardless of the identification of the Prisoners Representative.
G.
 POW Labor.77  (GC III, arts. 49 - 57)

1.
Rank has its privileges. a.
Officers cannot be compelled them to work.
b.
NCOs can be compelled to supervise only.
c.
Enlisted can be compelled to do manual labor.

d.
If they work, they must be paid.
e.
Retained Personnel shall not be required to perform any work outside their
medical or religious duties.  This is an absolute prohibition that includes
work connected to the administration and upkeep of the camp.  (GC I, art. 28(c))
2.
 Compensation. 78  (GC III, art. 60).  8 days paid vacation annually? (GC III, art.
53)
3.
 Type of Work.
a.
Work cannot be unhealthy or dangerous, unless the POW volunteers.
Work cannot be humiliating.  (GC III, art. 52)
b.
Work such as camp administration, installation, and maintenance is
authorized, as well as work relating to agriculture; commercial business, and arts, and crafts; and domestic service without restriction to military
character or purpose.79

c.
Industry work (other than in the metallurgical, machinery, and chemical
industries); public works and building operations; transport and handling
of stores; and public utility services is authorized provided it has no military character or military purpose.  (GC III, art. 50)

d.
Work in the metallurgical, machinery, and chemical industry is strictly
prohibited. (GC III, art. 50)
H.
 Camp Discipline.


1.
 Disciplinary sanctions.
a.
Must relate to breaches of camp discipline.



b.
Only four types of punishments (UCMJ Art. 15-type punishments) are
authorized (GC III, arts. 89 and 90).  The maximum punishments are:80

i.
Fine: 12 pay up to 30 days.
ii.
Withdrawal of privileges, not rights.
iii.  2 hours of fatigue duty per day for 30 days.

iv.  Confinement for 30 days.
c.
Imposed by the camp commander.  (GC III, art. 96)
2.
 Judicial sanctions.
a.
POWs:  Pre-capture v. post-capture.

i.
Pre-capture: General court-martial or federal or state court prosecution if they have jurisdiction over U.S. Soldier for the same
offense.81  (GC III, arts. 82 and 85)

ii.
Post-capture: any level court-martial allowed under UCMJ.
Jurisdiction for post-capture offenses is found under Art. 2(9), UCMJ (GC III, arts. 82 and 102).


iii.  Court-martial or military commission.82  (GC III, art. 84). [But note
effect of GC III, art. 102, is that U.S. must use a court-martial unless
80 GC IV provides the same maximum punishments for civilian internees.  See GC IV, art. 119.



81 See 10 U.S.C.  802(a)(9) and 18 U.S.C.  3227.



It should be noted that at least 12 nations have made a reservation to GC III, art. 85. The reservation in essence would deny a POW their protected status if convicted of a war crime.  North Vietnam used their reservation under Art. 85 to threaten on several occasions the trial of American pilots as war criminals.
See MARJORIE WHITEMAN, 10 DIGEST OF INTERNATIONAL LAW 231 - 234 (1968); J. Burnham, Hanoi's Special Weapons System: threatened execution of captured American pilots as war criminals, NAT. REV., Aug. 9, 1966; *Dangerous decision: captured American airmen up for trial?,* NEWSWEEK, July 25, 1966;
Deplorable and repulsive: North Vietnam plan to prosecute captured U.S. pilots as war criminals, TIME, July 29, 1966, at 12 - 13.  *See generally*, Joseph Kelly, *PW's as War Criminals*, MIL. REV. (Jan. 1972), at
91.

policy is changed to allow trial of a U.S. service members before a military commission.]

b.
Due process required. i.
POWs: same due process as that provided to the Detaining Power's
own military forces.  (GC III, arts. 99 - 108)
ii.
Right to appeal. (GC III, art. 106)
I.
 Escape.

1.
When is an escape deemed successful?83  (GC III, art. 91)
a.
Service member has rejoined their, or an ally's, armed forces;



83 Between 1942 and 1946, 2,222 German POWs escaped from American camps in the U.S.  At the time of repatriation, 28 still were at large. One remained at large and unaccounted for in the U.S. until 1995!
None of the German POWs ever successfully escaped.  During World War II, 435,788 German POWs were held on American soil (about 17 divisions worth).  Of all the Germans captured by the British in Europe, only one successfully escaped and returned to his own forces.  This German POW did this by jumping a prisoner train in Canada and crossing into the U.S., which at that time was still neutral.

ALBERT BIDERMAN, MARCH TO CALUMNY: THE STORY OF AMERICAN POW'S IN THE KOREAN WAR 90
(1979); Jack Fincher, *By Convention, the enemy within never did without*, SMITHSONIAN (June 1995), at
127.  *See also* ARNOLD KRAMMER, NAZI PRISONERS OF WAR IN AMERICA  (1994).



See A. Porter Sweet, *From Libby to Liberty*, MIL. REV. (Apr. 1971), at 63, for an interesting recount of how 109 union Soldiers escaped a Confederate POW camp during the Civil War.  See ESCAPE AND
EVASION: 17 TRUE STORIES OF DOWNED PILOTS WHO MADE IT BACK (Jimmy Kilbourne, ed. 1973), for stories of servicemen who successful avoided capture after being shot down behind enemy lines or those who successfully escaped POW camps after capture.  The story covers World War I through the Vietnam War. According to this book, only 3 Air Force pilots successfully escaped from captivity in North Korea.
Official Army records show that 670 Soldiers captured managed to escape and return to Allied control.

However, none of the successful escapees had escaped from permanent POW camps.  *See* Paul Cole, I
POW/MIA Issues, The Korean War 42 (Rand Corp. 1994).  *See also* George Skoch, Escape Hatch Found: Escaping from a POW camp in Italy was one thing.  The next was living off a war-torn land among partisans, spies, Fascists and German Patrols, MIL. HISTORY (Oct. 1988), at 34.


b.
Service member has left the territory of the Detaining Power or its ally;
(i.e., entered a neutral country's territory);
c.
Service member has joined a ship flying the flag of the Power on which he
depends, or of an Allied Power, in the territorial waters of the Detaining
Power, the said ship not being under the control of the last named Power.84

2.
 Unsuccessful escape.

a.
Only disciplinary punishment for the escape itself (GC III, art. 92).85

b.
Offenses in furtherance of escape.
i.
Disciplinary punishment only: 86 if sole intent is to facilitate escape
and no violence to life or limb, or self-enrichment (GC III, art. 93). For example, a POW may wear civilian clothing during escape attempt without losing their POW status.87

ii.
Judicial punishment: if violence to life or limb or self-enrichment
(GC III, art. 93).

3.
 Successful escape. a.
Some authors argue no punishment can be imposed for escape or violence to life or limb offenses committed during escape if later recaptured.  (GC III, art. 91)

procure "the escape of any prisoner of war held by the United States or any of its allies, or the escape of any person apprehended or interned as an enemy alien by the United States or any of its allies, or . . .

assists in such escape . . ., or attempts to commit or conspires to commit any of the above acts. . . ."


87 Rex v. Krebs (Magistrate's Court of the County of Renfrew, Ontario, Canada), 780 Can. C.C. 279
(1943). The accused was a German POW interned in Canada.  He escaped and during his escaped he broke into a cabin to get food, articles of civilian clothing, and a weapon.  The court held that, since these acts were done in an attempt to facilitate his escape, he committed no crime.

b.
However, most authors posit that judicial punishment can occur if a POW
is later recaptured for his previous acts of violence.
c.
Issue still debated, so U.S. policy is not to return successfully escaped
POW to same theater of operations.
4.
Use of force against POWs during an escape attempt or camp rebellion is lawful. Use of deadly force is authorized "only when there is no other means of
putting an immediate stop to the attempt."88


J.
Repatriation of Prisoners of War.89
1.
Sometimes required before cessation of hostilities (GC III, art. 109).
a.
Seriously sick and wounded POWs whose recovery is expected to take
more than 1 year (GC III, art. 110).

b.
Incurably sick and wounded (GC III, art. 110).
c.
Permanently disabled, physically or mentally (GC III, art. 110).
d.
Used in Korean War: 6640 North Korean and Chinese for 684 UN Soldiers during what was known as Operation Little Switch.
e.
This provision is routinely ignored.
2.
After cessation of hostilities.
extreme measure, which shall always be preceded by warnings appropriate to the circumstances."  GC III, Geneva Convention III: Prisoners of War

a.
GC III, art. 118, provides: "Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities."

b.
Rule followed after World War II.  Result: thousands of Russian POWs
executed by Stalin upon forced repatriation.
c.
U.N. command in Korea first established principle that POWs do not have
to be repatriated, if they do not so wish.90


## Geneva Convention Iv: Civilians On The Battlefield I. Objectives

A.  Familiarity with historical development of protections for civilians during armed
conflict.

B.
Understanding of the legal definition of "civilian."
C.
Understanding of consequences of civilians taking direct part in hostilities.


## Ii.  Development Of Civilian Protections During Armed Conflict

A.
 Historical Background. The concept of protecting civilians during conflict is ancient.
Historically, three considerations motivated implementation of such protections. 1.
Desire of sovereigns to protect their citizens. Based on reciprocal self-interests, ancient powers entered into agreements, followed codes of chivalry, or issued instructions to soldiers in the hope similar rules would protect their own land
and people if they fell under their enemy's control.


2.
Facilitation of strategic success. Military and political leaders recognized that
enemy civilians who believed that they would be well treated were more likely to surrender and cooperate with occupying forces.  Sparing the vanquished from atrocities facilitated ultimate victory.
3.
Desire to minimize the devastation and suffering caused by war.  Throughout
history, religious leaders, scholars, and military professionals advocated limitations on the devastation caused by conflict.  This rationale emerged as a major trend in the development of the law of war in the mid-nineteenth century and continues to be a major focus of advocates of "humanitarian law."

B.
 The Lieber Code. Prior to the American Civil War, although treatises existed, there
was no written "Law of War." Only customary law existed regarding the need to distinguish between combatants and civilians.

1.
Dr. Francis Lieber, a law professor at Columbia College in New York at the
outset of American Civil War, advised President Lincoln on law of war matters. In November 1862, Dr. Lieber and four General Officers draft the Lieber Code. On April 24, 1863, the United States published the Lieber Code as General
Order No. 100, Instructions for the Government of the Armies of the United States in the Field. Incorporating customary law and contemporary practices, it was the first official laws of war published and implemented by a State.
2.
The Lieber Code contained 157 articles and ten sections.  The first two sections
contain specific language regarding civilians.
a.
Section I, Martial lawMilitary jurisdictionMilitary necessity
Retaliation.

b.
Section II, Public and private property of the enemyProtection of
persons, and especially of women; of religion, the arts and sciences
Punishment of crimes against the inhabitants of hostile countries.
3.
Lieber Code Principles on Treatment of Civilians. The Lieber Code
expressly condoned, under military necessity, starvation of civilians; however, it recognized civilian status and that the "unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit." (Art. 22)

a.
War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of
the enemy.  (Art. 17)
b.
When a commander of a besieged place expels the non-combatants, in
order to lessen the number of those who consume his stock of provisions,
it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender.  (Art. 18)
c.
Commanders, whenever admissible, inform the enemy of their intention to
bombard a place, so that the non-combatants, and especially the women
and children, may be removed before the bombardment commences.  But it is no infraction of the common law of war to omit thus to inform the enemy.  Surprise may be a necessity.  (Art. 19)
d.
The citizen or native of a hostile country is thus an enemy, as one of the
constituents of the hostile state or nation, and as such is subjected to the hardships of the war.  (Art. 21)

e.
Nevertheless, as civilization has advanced during the last centuries, so has
likewise steadily advanced, especially in war on land, the distinction between the private individual belonging to a hostile country and the
hostile country itself, with its men in arms.  The principle has been more
and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit.  (Art. 22)
f.
Private citizens are no longer murdered, enslaved, or carried off to distant
parts, and the inoffensive individual is as little disturbed in his private
relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war.  (Art. 23)
g.
The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty and protection and every disruption of family ties.  Protection was, and still is with uncivilized
people, the exception. (Art. 24)


h.
All wanton violence committed against persons in the invaded country, all
destruction of property not commanded by the authorized officer, all
robbery, all pillage or sacking, even after taking a place by main force, all
rape, wounding, maiming, or killing of such inhabitants, are prohibited
under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer, or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the spot by such superior.
(Art. 44)
C.
Civilian Protection in the Modern Jus in Bello. By the early twentieth century, two
methodologies for regulation of the conduct of war developed under international law. 1.
The Hague Tradition. The Hague Tradition developed a focus on limiting the
means and methods used in combat.  Named for the series of treaties produced
at the 1899 and 1907 Hague Conferences, instruments of the Hague Tradition restrict Parties' conduct of combat operations.  The Hague treaties contain
regulations regarding the means and methods of warfare during hostilities
(regarding protection of civilian property) and protection of civilians during occupation. General civilian protections are not a focus of the Hague Tradition.



a.
 Protections During Hostilities.
i.
No seizure or destruction of civilian property unless imperatively
demanded by military necessity.  (HR, art. 23)

ii.
No use of arms and projectiles (against population centers)
calculated to cause unnecessary suffering.  (HR, art. 23)
iii.  No bombardment of undefended places.  (HR, art. 25)

iv.  No forcing enemy nationals to assist in the war effort against their
own nation. (HR, art. 23)
v.
All necessary measures must be taken to spare, as far as possible,
religious, medical, or cultural structures.  (HR, art. 27)
vi.  All necessary measures must be taken to spare, as much as possible,
places where wounded and sick are collected. (HR, art. 27)
vii.  No pillaging.  (HR, art. 28)

b.
Protections of Civilians During Occupation. "[T]erritory is considered
occupied when it is actually placed under the authority of the hostile
army."  (HR, art. 42) i.
Duty to ensure public safety.  (HR, art. 43)
ii.
No coercion of information.  (HR, art. 44)


iii.  No forcing inhabitants of occupied territory to swear an oath of
allegiance.  (HR, art. 45)
iv.  No pillaging.  (HR, art. 47)
v.
No general submission for the acts of an individual, subgroup, or
group. (HR, art. 50)
vi.  Family honor, property rights, and religious freedom must be
respected. (HR, art. 46)
2.
The Geneva Tradition. The second methodology, the Geneva Tradition, focuses
on treatment of war victims in the hands of enemy armed forces.  Prior to World
War II, the Geneva Conventions of 1864,119062 and 19293 afforded protections
to civilians only when aiding wounded soldiers.

## Iii. Fourth Geneva Convention, 1949


A.
 World War II exposed civilians to increasingly destructive methods of warfare.  The
most compelling factor in the decision to include civilians in the Geneva
Conventions, however, was the abominable fate that civilians suffered while at the hands of their nations' enemies.4


B.
International Armed Conflict.

1.
 "Civilian" Defined. Although the concept of distinction between combatants
and civilians lies at the very foundation of the law of war, GC IV contains no
definition of who falls within the category of "civilian."5
a.
The AP I Definition.
Holocaust, produced at least forty million deaths.  As many as 1,700 cities and towns and 70,000 villages were devastated in the Soviet Union.  Over 40 percent of the buildings were destroyed in forty-nine of Germany's largest cities and many suffered much worse.").


5 Derek Jinks, *The Declining Significance of POW Status*, 45 HARV. INT'L L.J. 367, 381 (2004).

i.
By 1974, it was apparent that the lack of a definition of "civilian" in
GC IV was inadequate, and jeopardized the principle of distinction.6

As a result, in 1977, AP I provided a definition in Art. 50(1) stating:
"A civilian is any person who does not belong to one of the
categories referred to in Article 4(A)(1), (2), (3) and (6) of the Third
Convention and in Article 43 of this Protocol."

ii.
Art. 50(1), therefore, adopts a "negative" definition.  The definition
results in that the following persons, generally considered to be
lawful combatants, **do not qualify as "civilians"** for purposes of the
law of war:
A.  Members of the armed forces of parties to the conflict;7

B.
Members of militias and organized resistance movements
belonging to a Party to the conflict;8

C.
Members of regular armed forces belonging to governments
not recognized by the Detaining Power;9 and
D.  Inhabitants of non-occupied territory who spontaneously take
up arms to resist invading forces; so-called *levees en masse*.10


iii.  Consequently, by AP I, art. 50(1), one is either a (lawful) combatant
or a civilian.

6 AP Commentary remarks:  "As we have seen, the principle of the protection of the civilian population is inseparable from the principle of the distinction which should be made between military and civilian persons. In view of the latter principle, it is essential to have a clear definition of each of these categories." AP Commentary at 610 (emphasis added).

7 GC III, art 4(A)(1).

movements belonging to a party to the conflict must: (1) be commanded by a person responsible for his subordinates; (2) have distinctive insignia visible at a distance; (3) carry arms openly; and (4) conduct operations in accordance with the laws of war.  Id. arts. 4(A)(2)(a),(b),(c), and (d).


9 Id. art. 4(A)(3).



10 Id. art. 4(A)(6).  *Levees en masse* must observe two of the conditions applied to militias and organized resistance movements:  carrying arms openly; and conducting themselves in accordance with the law of war. Id.

b.
 Unlawful combatants?
i.
Neither the Geneva Conventions nor AP I recognize or define a third
category of "unlawful combatants." 11

ii.
Domestic courts, however, such as the U.S. Supreme Court, have
defined the term.12


iii.  The U.S. Congress previously defined "unlawful enemy combatant"
for purposes of trial by military commission in the Military
Commissions Act of 2006.13  In 2009, the Military Commissions Act
was amended, and instead defined the following terms: A.
 Privileged Belligerent. The term 'privileged belligerent' means
an individual belonging to one of the eight categories
enumerated in Article 4 of the Geneva Convention Relative to
the Treatment of Prisoners of War.

B.
 Unprivileged Enemy Belligerent. The term 'unprivileged
enemy belligerent' means an individual (other than a privileged belligerent) who: 1.
Has engaged in hostilities against the United States or its coalition partners;
2.
Has purposefully and materially supported hostilities
against the United States or its coalition partners; or
3.
Was a part of al Qaeda at the time of the alleged offense under this chapter.14



## C. Non-International Armed Conflict.

1.
 "Civilian" Defined.
a.
 Geneva Conventions. There is no clear definition of civilian under
Common Article 3, which provides that "each Party to the conflict" must afford protection to "persons taking no active part in hostilities, including
members of the armed forces who have laid down their arms and those placed in hors de combat."
b.
Additional Protocol II (AP II). There is no clear definition of civilian in
AP II; however, AP II, art. 1, states that it applies "in the territory of a
High Contracting Party between its armed forces and dissident armed forces or other organized armed groups."
c.
ICRC Interpretive Guidance.

i.
The ICRC Interpretive Guidance states that Common Article 3
implies that "both State and non-State parties have armed forces
distinct from the civilian population."15  The guidance follows by
concluding that Common Article 3 "thus implies a concept of civilian comprising those individuals 'who do not bear arms' on behalf of a party to the conflict."16


ii.
It states that within AP II, art. 1, the term "'armed forces' is
restricted to State armed forces, whereas the armed forces of non- State parties are referred to as 'dissident armed forces' or 'other
organized armed groups.'"17  Consequently, civilians are those
persons not members of State armed forces or non-State organized
armed groups.18



iii.
It further states that in non-international armed conflict, organized
armed groups consist only of individuals whose continuous function is to take a direct part in hostilities (continuous combat function).19

iv.
The U.S. has not issued a formal response or opinion regarding the
ICRC Interpretive Guidance.


## Iv. Civilian Contractors In The Area Of O**Perations**20

A.  Army Regulation 715-9, Contractors Accompanying the Force, para. 3-3d, (Oct. 29,
1999), states: "In the context of the law of war, contracted support service personnel
are civilians accompanying the force.  They may be used to perform only selected combat support and combat service support activities.  They may not be used in or
undertake any role that could jeopardize their status as civilians accompanying the
force." Although drafted when the U.S. employed the "active part" test,21 the
regulation **does not** employ the term.
1.
Prohibition against contractors performing "inherently governmental" functions.
a.
Army Regulation 715-9, Contractors Accompanying the Force, para. 3-3d
(Oct. 29, 1999), explains in its glossary of terms that:
[f]unctions inherent to, or necessary for the sustainment of combat operations, that are performed under combat conditions or in otherwise uncontrolled situations, and that require direct control by
the military command structure and military training for their proper execution, are considered inherently governmental.  This includes
functions performed exclusively by military (active and reserve) who are trained for combat and the use of deadly force, where performance by a contractor or civilian would violate their non
combatant status under the Geneva Conventions or represent an inappropriate risk to military operations.

B.
Field Manual 3-100.21 (100-21), Contractors on the Battlefield, para. 6-2 (Jan. 2003),
states that contractors cannot "take an active role in hostilities but retain their inherent
right of self defense."
C.
Department of Defense Instruction 3020.41 (2005).22  The instruction addresses
permissible functions for contractors accompanying U.S. forces. 1.
Paragraph 6.3.5 addresses security functions, stating: "a defense contractor may
be authorized to provide security services for other than uniquely military
functions."
2.
The Instruction leaves unaddressed, however, exactly what functions are
uniquely military and whether such functions are context or theater-dependent. The Instruction instead states:  "Whether a particular use of contract security personnel to protect military assets is permissible is dependent on the facts and requires legal analysis." The Instruction then cites variables such as the nature
of the operation the type of conflict, and surrounding legal agreements such as status of forces agreements.

3.
Ultimate approval for use of contractors as security appears to rest with
Combatant Commanders or their general officer designees.
D.  Department of Defense Instruction 1100.22.23  This instruction provides guidance
regarding proper employment of military, DoD civilian, and civilian contractors.  It explains that inherently governmental functions cannot be legally contracted.24

1.
 Substantial discretion.
a.
Contractors may only be used if services do not involve substantial discretion, which is inherently governmental.25



b.
Because combat operations authorized by the U.S. government entail the
exercise of sovereign government authority, involve substantial
discretion, and can significantly affect the life, liberty, or property of private persons or international relations, they cannot be legally
contracted.26
c.
A decision [does not require substantial discretion and] is not inherently
governmental if it can be limited or guided by existing policies, procedures, directions, orders, or other guidance that identify specific
ranges of acceptable decisions or conduct and subject the discretionary
authority to final approval or regular oversight by government officials.
2.
Federal Acquisition Regulation (FAR). Contracts shall not be used for the
performance of inherently governmental functions.27

a.
Although not all inclusive, the following are examples of inherently
governmental functions: i.
Direct conduct of criminal investigations, control of prosecutions,
and performance of adjudicatory functions other than those relating
to arbitration or other methods of alternative dispute resolution.

ii.
Command of military forces, especially the leadership of military
personnel, or direction or control of other Federal government
employees.

iii.  The conduct of foreign relations and the determination of foreign
policy.
iv.  The direction and control of intelligence and counter-intelligence
operations.28

b.
The FAR requires agencies to include procedures requiring the agency
head or designated requirements official to provide the contracting officer, concurrent with the statement of work, a written determination that none
of the functions to performed are inherently governmental.29

c.
The Defense Financial Acquisition Regulation Supplement (DFARS)30

requires the documentation required by the FAR that none of the functions
to be performed by contract are inherently governmental:
i.
Shall be prepared using DoDI 1100.22; and

ii.
Shall include a determination that none of the functions to be
performed are exempt from private sector performance, as addressed
in DoDI 1100.22.31


## V.  Conclusion

A.  The loss of protections of civilians engaging in hostilities on the battlefield, and the
increasing use of civilian contractors to conduct various activities in the midst of hostilities, will continue to be a debated area in current and future operations.

## Gc Iv: Occupation And Post-Conflict Governance I. Objectives

A.  Understanding the legal requirements for the existence of an occupation. B.
Familiarity with the legal obligations and requirements of the Occupying Power.
C.
Understanding the application of the parts and sections, and corresponding
protections, found within the Geneva Convention for the Protection of Civilians.

## Ii.  Occupation Defined


A.
 General. Belligerent occupation is the military occupation of enemy territory:
"Territory is considered occupied when it is actually placed under the authority of the
hostile army.  The occupation extends only to the territory where such authority has been established and can be exercised." (HR, art. 42; FM 27-10, para. 351) 1.
Commencement of Occupation is a **Question of Fact**. A state of occupation
exists when two conditions are satisfied:  first, the invader has rendered the invaded government incapable of publicly exercising its authority; and second,
the invader has successfully substituted its own authority for that of the legitimate government.  (FM 27-10, para. 355)
2.
Occupation = Invasion + Firm Control. The radius of occupation is
determined by the effectiveness of control; occupation must be actual and effective. (FM 27-10, para. 356)
B.
 Law. The law of belligerent occupation refers to those provisions of customary or
conventional international law that regulate the conduct of a belligerent in occupied territory.

C.
Proclamation Not Required. No proclamation of occupation is legally necessary, but
the fact of military occupation should be made known (FM 27-10, para. 357).  In post-WWII Germany, General Eisenhower issued Proclamation Number 1.  In Operation Iraqi Freedom, L. Paul Bremer, civilian administrator of the Coalition
Provisional Authority (CPA) issued Coalition Provisional Authority Regulation Number 11 on 16 May 2003.

## D. No Transfer Of Sovereignty.

1 The following is an excerpt from Coalition Provisional Authority Regulation Number 1:

Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA), relevant
U.N. Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war, I hereby promulgate the following:

## Section 1, The Coalition Provisional Authority


1) The CPA shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability, to create conditions in which the Iraqi people can freely determine their own political future, including by advancing efforts to restore and establish national and local institutions for representative governance and facilitating economic recovery and sustainable reconstruction and development.


2) The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant U.N. Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war.  This authority shall be exercised by the CPA Administrator.


3) As the Commander of Coalition Forces, the Commander of U.S. Central Command shall directly support the CPA by deterring hostilities; maintaining Iraq's territorial integrity and security; searching for, securing and destroying weapons of mass destruction; and assisting in carrying out Coalition policy generally.



## Section 2, The Applicable Law


Unless suspended or replaced by the CPA or superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of April 16, 2003 shall continue to apply in Iraq insofar as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with the present or any other Regulation or Order issued by the CPA.

## Section 3, Regulations And Orders Issued By The Cpa



1) In carrying out the authority and responsibility vested in the CPA, the Administrator will, as necessary, issue Regulations and Orders. Regulations shall be those instruments that define the institutions and authorities of the CPA.  Orders are binding instructions issued by the CPA. Regulations and Orders will remain in force until repealed by the Administrator or superseded by legislation issued by democratic institutions of Iraq.  Regulations and Orders issued by the Administrator shall take precedence over all other laws and publications to the extent such other laws and publications are inconsistent.  The Administrator may also from time to time issue Public Notices. . . .

1.
Military occupation does not transfer sovereignty to the Occupant, and the Occupant's powers are provisional only; the Occupant may take only those measures necessary for the maintenance of law and order and proper administration of the occupied territory. (FM 27-10, para. 358)
2.
Annexation or the establishment of puppet governments is prohibited. (GC IV, art. 47)
E.
 Termination. Occupation does not end upon cessation of hostilities, but continues
until full sovereignty of the occupied area is returned to the displaced sovereign, or until sovereignty is assumed by another State.

1.
"In the case of occupied territory, the application of the present Convention
shall cease one year after the general close of military operations. . ." (GC IV,
art. 6(2))
2.
But, AP I, art. 3(b) of purports to replace GC IV, art. 6(2).  Article 3(b) rejects
the one-year expiration, extending application of the Conventions and Protocol until "termination of the occupation."2

3.
The Occupant is bound to apply certain provisions throughout the duration of
occupation (i.e., humane treatment, fair trial, protection against forced transfers
or deportations); U.S. policy is to continue to apply all aspects of law
throughout the occupation.

## Iii. Authority Of Occupant

A.  "The authority of the legitimate power having in fact passed into the hands of the
occupant, the latter shall take all the measures in his power to restore, and ensure, as
far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." (HR IV, art. 43 (emphasis added))
1.
Authority of occupying force is supreme, constrained only by:
a.
The doctrine of military necessity; and
b.
Limitations imposed by binding international law, including customs and
treaties, such as the rights of protected persons contained in GC IV.
2.
Occupant is obligated to maintain public order and has the right to demand
obedience of inhabitants.
3.
All functions of legitimate government cease upon commencement of
occupation; functions of government continue only to extent Occupant allows. (FM 27-10, para. 367)

B.
 Applicable Law. "The penal laws of the occupied territory shall remain in force, with
the exception that they may be repealed or suspended by the Occupant in cases where
they constitute a threat to its security or an obstacle to the application of the present
Convention." (GC IV, art. 64) 1.
Occupant does not bring its own jurisdiction and civil and criminal laws; ordinarily, laws of occupied country continue in force and courts continue to sit
and try criminal cases not of a military nature. (GC IV, art. 64)
2.
Local courts should be used when feasible, but may be suspended if: a.
Judicial personnel will not perform their duties;
b.
Courts are corrupt or unfairly constituted;
c.
Local courts have ceased to function; or
d.
Judicial process does not comply with fundamental human rights.
3.
Occupant may establish military courts or provost courts.

a.
May be used to try violations of occupation provisions or regulations.
b.
May be used if properly constituted, non-political, and located in occupied
territory.

4.
Occupant may suspend, repeal, or alter existing laws, or promulgate new laws, if required by military necessity, maintenance of order, or welfare of the population. (HR, art. 43; GC IV, art. 64(3))
5.
Suspension or repeal of local laws should be related to security of the force,
mission accomplishment, or compliance with international law.  Examples: a.
Suspension of the right to bear arms;
b.
Suspension of the rights of assembly and protest;
c.
 Suspension of freedom of movement; or
d.
Suspension of discriminatory laws;
6.
Issuing New Laws. a.
Must publish and provide notice to inhabitants in their own language;
b.
Must be published in writing; and
c.
Must not be retroactive.
d.
Occupant has no obligation to comply with the constitutional or
procedural rules of the occupied country.
7.
Occupying force is exempt from local law and jurisdiction of local courts. (FM
27-10, para. 374)
C.
 Protecting Powers.
1.
The Geneva Conventions of 1949 envisioned that interests of parties to conflicts would be safeguarded by neutral nations designated as "Protecting Powers."3

2.
Protecting Powers have a named role in certain aspects of occupation.
3.
AP I restated and clarified duties of parties to conflicts to designate Protecting
Parties or substitutes.  (AP I, art. 5)

4.
In practice, such designations are rare; ICRC often serves as substitute. (GC IV,
art. 11)

## Iv. Security Of The Occupant

A.  Enforcement and Obedience.
1.
Occupant can demand obedience from inhabitants of occupied territory for the security of its forces, maintenance of law and order, and proper administration.
2.
Inhabitants have duty to behave in a peaceful manner, take no part in hostilities,
to refrain from acts harmful to the occupying force and its troops, and to render strict obedience to orders of the Occupant.  (FM 27-10, para. 432)
B.
 Security Measures. Military authorities in occupied territories have the right to
perform police functions and to protect their own security. 1.
The following measures of population control are permissible.  (GC IV, arts.
27(4), 42, 43, 49(2), 64, 66, and 78): a.
Restricting freedom of movement;
b.
 Evacuation;



their own nationals or the nationals of other neutral Powers.  The said delegates shall be subject to the approval of the Power with which they are to carry out their duties. The Parties to the conflict shall facilitate to the greatest extent possible, the task of the representatives
or delegates of the Protecting Powers.

The representatives or delegates of the Protecting Powers shall not in any case exceed their mission under the present Convention.


They shall, in particular, take account of the imperative necessities of security of the State wherein they carry out their duties."
GC IV, art. 9.

c.
Under certain exceptional circumstances, persons may be held incommunicado for a limited period;
d.
 Judicial process;
e.
 Assigned residence;
f.
 Internment.

2.
The following measures of population control are forbidden at all times.  (GC IV, arts. 31, 32, 33(1) and (3), 49(1)): a.
 Violence;
b.
Physical or moral coercion, particularly to obtain information;
c.
 Brutality;
d.
Punishment for acts of others (reprisals or collective penalties);
e.
 Deportations.
C.
Publication of Penal Provisions.
1.
"The penal provisions enacted by the Occupant shall not come into force before
they have been published and brought to the knowledge of the inhabitants in their own language. The effect of these penal provisions shall not be retroactive." (GC IV, art. 65)
2.
Publication must be in written form.  (FM 27-10, para. 435b)
D.
 Competent Courts. When penal provisions are breached, Occupant may try accused
before its own properly constituted non-political military courts, provided such courts sit in the occupied territory; courts of appeal should likewise sit in the occupied territory. (GC IV, art. 66)
E.
Applicable Law and Penalties.
1.
Courts shall apply those laws in effect prior to the offense.
2.
Penalties shall be proportionate to the offenses committed and shall take into
account that the inhabitants are not nationals of the Occupant. (GC IV, art. 67)
3.
Offenses against Occupant which (a) do not constitute attempts on life or limb
of members of occupying forces, (b) do not pose a grave collective danger, or (c) do not seriously damage property of the occupying forces shall carry a punishment of internment or simple imprisonment proportionate to the offense committed.  (GC IV, art. 68)
4.
 Death Penalty. a.
Occupant may only impose death penalty on protected persons convicted
of espionage, serious acts of sabotage against military installations, or intentional offenses which have caused the death of one or more persons.
(GC IV, art. 68)
b.
Death penalty may not be imposed on protected persons less than 18 years
of age at the time of the offense.  (GC IV, art. 68)
c.
Death penalty may only be imposed for those offenses that were
punishable by death under the law of the territory prior to occupation. (GC IV, art. 68)
d.
U.S. Reservation: U.S. has reserved the right to impose the death penalty
without regard to whether the offense was punishable by death under the law of the occupied territory prior to occupation.  (FM 27-10, para. 438b)
e.
No person condemned to death shall be deprived of the right to petition for
pardon or reprieve; execution of the death sentence suspended for 6 months absent grave emergency involving organized threat to Occupant or its forces. (GC IV, art. 75)
5.
Other Offenses and Penalties. a.
Fines and other penalties not involving deprivation of liberty may also be
imposed.  (FM 27-10, para. 438c)
b.
Period of time a person spends under arrest awaiting trial or punishment
shall be deducted from any sentence of imprisonment.  (GC IV, art. 69)

## F. Pre-Occupation Offenses.

1.
Protected persons shall not be arrested, prosecuted, or convicted by the
Occupant for offenses committed before the occupation, except for violations of the law of war. (GC IV, art. 70)
2.
Nationals of the Occupant who sought refuge in the occupied territory shall not be arrested, prosecuted, convicted, or deported from the occupied territory, except as follows: a.
For offenses committed after the outbreak of hostilities;
b.
For offenses committed before the outbreak of hostilities which would
have justified extradition in time of peace;

## G. Penal Procedure.

1.
Occupant may pronounce sentence only after a regular trial.  (GC IV, art. 71)
2.
Occupant must promptly provide those accused of crimes with a written copy of
the charges in a language they understand; trial must be held as rapidly as
possible. (GC IV, art. 71)
3.
Accused persons have the following rights at trial (GC IV, art. 72):
a.
To present evidence and call witnesses;
b.
To be represented by a qualified counsel or advocate of their choice, and time to prepare their defense;
c.
To have the assistance of an interpreter;
d.
To appeal (not absolute).
4.
Protecting Power.  (GC IV, art. 74)
a.
Occupant must advise Protecting Power of proceedings involving the death penalty, or imprisonment for 2 years or more, and must notify the Protecting Power of any final judgment confirming a death sentence.
b.
Representatives of the Protecting Power may attend trial of any accused
person except for those cases involving security of the Occupant;
Occupant must send date and place of trial to Protecting Power.
c.
Protecting Power may appoint the accused counsel or an advocate.

## V.  Property

A.
 Destruction Prohibited. Destroying or seizing enemy property is prohibited, unless
such destruction or seizure is demanded by imperative necessities of war (HR, art. 23(g)); Occupant is prohibited from destroying real or personal property (State or private) unless absolutely necessary due to military operations.  (GC IV, art. 53)

B.
 Pillage. Pillage, or looting by occupation troops, is strictly forbidden.  (HR, art. 47;
GC IV, art. 33)
C.
 Property Control. Occupant may control property within occupied territory to extent
necessary to prevent use by hostile forces.  (FM 27-10, para. 399)
D.
 Definitions.

1.
 Seizure. The **temporary taking** of proper, with or without authorization from
the local commander. Generally, the on-scene commander is the authority to seize property. Seizing, or temporarily taking, private property that has a direct military use (i.e., broadcasting or communications equipment) is permissible, but Soldiers must provide the owner a receipt to reclaim the property later, as well as compensation for any damage to the property.  (FM 27-10, para. 409)
2.
 Confiscation. Confiscating, or permanently taking, private property is not
permissible.
3.
 Requisition. Requisitioning of services and property from the population is
permissible if ordered by the local commander and paid for in cash; food or
other items needed by the civilian population may only be requisitioned after
taking those needs into consideration.  (FM 27-10, paras. 412 - 415)
E.
 Ownership.
1.
 Beneficial Ownership. It may be necessary to look beyond legal title to
determine whether property is public or private; evaluate character of property based on who benefits from ownership, i.e., private trust funds are not public property just because they are held in a state bank. (FM 27-10, para. 394a)
2.
Mixed or Unknown Ownership. Property is public if State has assumed
economic risk involved in holding and managing the property; if owner unknown, treat as public until ownership ascertained. (FM 27-10, para. 394b, c)
F.
 State Property.
1.
Occupant serves as administrator and conservator of public buildings, real
estate, forests, and agricultural estates belonging to the hostile State; Occupant
must safeguard and administer.  (HR, art. 55)
2.
Real property of direct military use (forts, arsenals, dockyards, magazines,
barracks, railways, bridges, piers, wharves, airfields, and other military facilities) remain in Occupant's control until close of the war and may be damaged or destroyed if militarily necessary.  (FM 27-10, para. 401)
3.
Non-military real property may not be damaged or destroyed unless military
operations render absolutely necessary; Occupant may not sell real property or
lessen its value. (FM 27-10, para. 402)
4.
 Movable Property. a.
"An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for operations of the war." (HR, art. 53)
b.
Classes of Movable Property. All movable property susceptible to
military use may be taken and used by the Occupant; all other property must be respected and may not be appropriated. (FM 27-10, para. 404)
G.
 Private Property.

1.
 Municipal, Religious, Charitable, and Cultural Property. Even where such
property belongs to the State, it shall be treated as private property; seizure and destruction is forbidden. (HR, art. 56)
a.
Such premises may be requisitioned in the event of necessity for quartering troops and the sick and wounded, storage of supplies and
material, housing of vehicles and equipment, and otherwise as allowed for private property; must secure against all avoidable injury.  (FM 27-10, para. 405b)
b.
It is U.S. practice thatif emergency conditions require such use
religious buildings, shrines, and consecrated places employed for worship
are to be employed only as aid stations, medical installations, or for
housing the wounded awaiting evacuation.  (FM 27-10, para. 405c)

2.
No Confiscation of Private Property. Prohibition extends to outright takings as well as to any acts that, by use of threats, intimidation, or pressure, or by actual exploitation of the Occupant's power, permanently or temporarily deprives the owner of the property without consent or without authority under international law. (HR, art. 46 para. 2; FM 27-10, para. 406b).  Private real property may not be seized, but may be requisitioned.  (FM 27-10, para. 407)
3.
Private Property Susceptible to Direct Military Use.
a.
Property such as cables, telephone and telegraph plants, radio, television,
and telecommunications equipment, motor vehicles, railways, railway
plants, port facilities, ships in port, barges and other watercraft, airfields, aircraft, depots of war, all varieties of military equipment, including that in the hands of manufacturers, component parts of or material suitable only
for use in the foregoing, and in general all kinds of war material, may be
seized provided a receipt is given to the owner for return of the property and/or compensation.  (GC IV, art. 53; FM 27-10, para. 410a)
b.
Destruction of any of the foregoing is permissible only if rendered
absolutely necessary by military operations.  (GC IV, art. 53; FM 27-10, para. 410b)
H.
 Requisitions.
1.
Requisitions in kind and services shall be made only for the needs of the occupying army; shall be in proportion to the resources of the country; shall be demanded only by the commander of the occupied locality; and shall be paid for in cash so far as possible. (HR, art. 52)
2.
Almost everything may be requisitioned for the maintenance of the army:  fuel,
food, clothing, building materials, machinery, tools, vehicles, furnishings for
quarters; billeting of troops in occupied areas is authorized.  (FM 27-10, para. 412b)
3.
Requisitioning of food and medical supplies in the occupied territory is only permissible for use by the occupation forces and administration personnel, and
only if the needs of the civilian population have been taken into account; the
Occupant shall pay fair value for any requisitioned goods.  (GC IV, art. 55 para. 2)
4.
Coercive measures must be limited to the amount and kind necessary to secure
the requisitioned articles.  (FM 27-10, para. 417)

## Vi. Services Of Occupied Population

A.
 Labor.
1.
"The Occupant may not compel protected persons to serve in its armed or
auxiliary forces." (GC IV, art. 51)
2.
 Permissible Work. Protected persons over age 18 may only be compelled to do
work necessary for the needs of the occupation army, for public utility services, or for feeding, sheltering, clothing, transportation or health of occupied population; no military operations. (GC IV, art. 51)

3.
 Prohibited Labor. Prohibition against working in support of military operations includes services directly promoting the ends of the war such as construction of fortifications, entrenchments, and military airfields or the transportation of supplies or ammunition in the zone of operations; however, voluntary
employment for pay to do such work is permitted.  (FM 27-10, para. 420)
B.
Services That May be Requisitioned.
1.
Professional services, to include: engineers, physicians and nurses, artisans and
laborers such as clerks, carpenters, butchers, bakers, and truck drivers.  (FM 27 10, para. 419)
2.
Officials and employees of railways, truck lines, airlines, canals, river or
coastwise steamship companies, telephone, telegraph, radio, postal and similar services, gas, electric, and water works, and sanitary authorities. (FM 27-10, para. 419)
3.
Repair of roads, bridges, and railways and services on behalf of local
population, including care for wounded and sick and burial of the dead. (FM 27 10, para. 419)
C.
 Protection of Workers. "All measures aimed at creating unemployment or at
restricting the opportunities offered to workers in an occupied territory, in order to
induce them to work for the Occupant, are prohibited."  (GC IV, art. 54)
D.  Judges and Public Officials.

1.
Occupant may not alter status of judges or public officials or coerce or
discriminate against them for not fulfilling their functions based on reasons of conscience; however, Occupant may remove officials from their posts.  (GC IV, art. 54)
2.
 Oath. Occupant may require officials to take an oath to perform their duties
conscientiously, and failure to do so may result in removal (FM 27-10, para. 423); distinguish this oath of obedience from an oath of allegiance to the Occupant, which is forbidden. (HR, art. 45)
3.
 Salaries. Civil officials such as judges, administrative or police officers, and
officers of city governments are paid from public revenues of occupied territory
until military government has reason to dispense with their services.  (FM 27 10, para. 424)

## Vii. Public Finance

A.
 Taxes.
1.
If Occupant collects taxes, dues, and tolls for the benefit of the occupied state, it
shall be done in accordance with existing rules of incidence and assessment. (HR, art. 48)
2.
Taxes shall be applied first to the costs of administering the occupied territory, and the balance may be used for the needs of the Occupant.  (FM 27-10, para.
425b)
3.
No new taxes may be levied by Occupant unless considerations of public order
and safety so require. (FM 27-10, para. 426b)
B.
 Contributions.
1.
If the Occupant levies money contributions in addition to taxes, these may only
be for the needs of the army or for administration of the occupied territory. (HR, art. 49)
2.
Contributions may only be collected pursuant to a written order, and receipts
shall be given for all contributions. (HR, art. 51)
C.
Costs of Occupation.
1.
Economy of occupied country can be required to bear expenses of occupation,
which should not be greater than the economy can reasonably be expected to bear. (FM 27-10, para. 364)
2.
In practice, U.S. occupation expenses are funded by Department of Defense
appropriations.

## Viii. Civilian Protections - Entire Population

A.
 Background. To gain full protection as a matter of law under the Geneva
Conventions, recall that you must qualify as being in the right type of conflict and
being the right kind of person. The right type of conflict analysis determines whether or not the full body of the law of war applies.  If there is an international armed
conflict, then ALL civilians are entitled to GC IV, Part II protections.  These protections are very basic as will be seen below.  They form the first step in the
protective scheme of GC IV.  The right type of person analysis determines whether a
person qualifies for enhanced protections under GC IV, Part III.


B.
GC IV, Part II - Protection of the Entire Population. Although GC IV was the first
law of war treaty devoted exclusively to the protection of civilians, with the exception
of Common Article 3, only Part II of the treaty applies to every civilian in the
area of conflict. GC IV, art. 13 states that "the provisions of Part II cover the whole
of the populations of the countries in conflict, without any adverse distinction based, in particular, on race nationality, religion or political opinion, and are intended to alleviate the suffering caused by war."

1.
Article 15 of GC IV. Provides for, but does not mandate, the establishment of
"neutralized zones" (temporary zones in the area of combat) to shelter from
the effects of war:
a.
Wounded and sick combatants and non-combatants;
b.
Civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.

2.
Article 14 of GC IV. Provides for, but does not mandate, the establishment of
"hospital/safety zones" (permanent structures established outside combat area)
to shelter from the effects of war **"Special Needs"** civilians:

a.
Mothers of children under seven;
b.
Wounded, sick, and infirm;

c.
 Aged;
d.
Children under the age of 15; and
e.
 Expectant mothers.

3.
Further Protections of the Entire Population. In addition to providing for the establishment of these "protected" zones, Part II also mandates the following protections: a.
The wounded, sick, infirm and expectant mothers must be "respected and
protected" by all parties to the conflict at all times (GC IV, art. 16)
b.
Agreements should be reached to allow for removal of special needs
individuals from besieged areas and the passage of ministers and medical
personnel to such areas. (GC IV, art. 17)
c.
Civilian Hospitals shall not be the object of attack. (GC IV, art. 18)
d.
Allow passage of consignments of medical supplies, foodstuffs, and
clothing. (GC IV, art. 23)
e.
Protection and maintenance of orphans, or those separated from their
family who are under the age of 15.  (GC IV, art. 24)
f.
Rights to communicate with family via correspondence (GC IV, art. 25)

## Ix. Status And Treatment Of "Protected Persons"


A.  Part III Protections. The protected persons analysis is the next step in the GC IV
protection scheme.  Individuals who meet the definition of "protected person" already
qualify for Part II protections; however, they will also receive additional coverage from GC IV, Part III.  The specific protections, found within the various sections of Part III, are governed by the type of conflict ongoing in the territory in which the individual finds him or herself.  Generally, protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs.  (GC IV, art. 27)

B.
 Protected Persons. (GC IV, art. 4, para. 1). "Persons protected by the Convention are
those who, at a given moment and in any manner whatsoever find themselves, in case
of conflict or occupation, in the hands of a party to the conflict or occupying power of
which they are not nationals." Based on this definition, the following qualify as protected persons:


1.
Civilian enemy nationals within the national territory of each of the parties to
the conflict. Example: Iraqi students in the U.S. at the outset of the 2003 Iraq
War. **Note:**  Nationals of a neutral or co-belligerent State are not protected
persons if their country has normal diplomatic relations with the State in which
they are located.

2.
The population of occupied territories, excluding nationals of the occupying power and co-belligerents. Example: In the case of Operation Iraqi Freedom,
once Iraq was occupied, all civilians in Iraq who were not nationals of the States that comprised the coalition became protected persons.



C.
Those Not Protected. While there are four exceptions or exclusions that are
specifically listed in GC IV, art. 4, other individuals may be excluded based on the
threshold definition found in article 4.

1.
Nationals of belligerent State during hostilities, prior to occupation.  Both
Article 5 and Part III elaborate on treatment of protected persons by bifurcating them into two categories:

a.
Nationals of belligerents living in enemy territory; and

b.
The population of occupied territories (excluding nationals of the occupying power)

Neither of these categories includes nationals of the State, during hostilities
(prior to occupation). This achieves what is initially an attractive result by excluding unlawful combatants seized on an active battlefield from protected person status. Yet the exclusion may cause concern when it operates to exclude innocent civilians from the same status.
2.
Nationals of the Occupying or Hostile Force.
3.
Nationals of a Party not bound by the Convention.
4.
Nationals of a Neutral State (if that state has normal diplomatic representation
within the hostile state).  This exception does not apply in occupied territories; neutrals are protected persons in occupied territories regardless of diplomatic
relations. **Note:** The rule on its face only applies to Neutrals who find themselves in the territory of a **belligerent** state. In belligerent territory, the
drafters believed that the "position of neutrals is still governed by any treaties
concerning the legal status of aliens and their diplomatic representatives can take steps to protect them. In occupied territory, on the other hand, the diplomatic representatives in neutral States, even assuming that they remain
there, are not accredited to the Occupying Power but only to the occupied Power." (GC IV Commentary at 49)
5.
Nationals of Co-belligerent (an ally).
6.
Persons protected by any of the other three Conventions.

## X.  Specific Articles Addressing Protected Persons

A.  Before reviewing the protections available to protected persons, it is important to note
that, protected persons may in no circumstances renounce in part or in entirety the
rights secured to them by GC IV.  (GC IV, art. 8)
B.
Part III, Section I - **The General Standard:**  "Protected persons are entitled in all
circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs.  They shall at all times be humanely treated." (GC IV, art. 27) 1.
Respect for Their Persons. Intended to grant a wide array of rights to protect
physical, moral, and intellectual integrities.  (GC IV, art. 27)
2.
 Respect for Honor. Acts such as slander, insults, and humiliation are prohibited. (GC IV, art. 27)
3.
Respect for Family Rights. Arbitrary acts which interfere with marital ties, the
family dwelling, and family ties are prohibited.  This is reinforced by GC IV, art. 82, that requires, in the case of internment, that families be housed together.
(GC IV, art. 27)
4.
Respect for Religious Convictions. Arbitrary acts which interfere with the
observances, services, and rites are prohibited (only acts necessary for maintenance of public order/safety are permitted).  (GC IV, art. 27)
5.
Respect for Manners and Customs. Intended to protect the class of behavior which defines a particular culture. This provision was introduced in response to the attempts by World War II Powers to effect "cultural genocide."  (GC IV, art. 27)
6.
No insults and exposure to public curiosity.  (GC IV, art. 27)
7.
No rape, enforced prostitution, and indecent assault on women.  (GC IV, art. 27)
8.
No using physical presence of persons to make a place immune from attack. (GC IV, art. 28)
9.
No physical or moral coercion, particularly to obtain information. (GC IV, arts.
31 and 33)
10.  No actions causing physical suffering, intimidation, or extermination; including
murder, torture, corporal punishment, mutilation, brutality, and
medical/scientific experimentation. (GC IV, art. 32)
11.  No pillaging (under any circumstances and at any location). (GC IV, art. 33) 12.  No collective penalties. (GC IV, art. 33) 13.  No reprisals against the person or his property. (GC IV, art. 33)
14.  No taking of hostages (GC IV, art. 34)
C.
Part III, Section II: Protections specifically for aliens within the territory of a party to
the conflict. This section affords protected persons with many of the same rights and privileges as host nation civilians. 1.
Right to Leave the Territory. (GC IV, art. 35). (Right may be overcome by the national interests (security) of the State.)

2.
Right to Humane Treatment during Confinement. Protected persons are entitled
to the quality of treatment recognized by the civilized world, even if it exceeds
the quality of treatment that a Detaining Power grants to its own citizens. (GC
IV, art. 37)
3.
Right to receive relief packages, medical attention, and practice of their religion.
(GC IV, art. 38)
4.
Right to find gainful employment, subject to security concerns. If no
employment is possible, the Party shall ensure support. (GC IV, art. 39)
5.
Limitations on the Type and Nature of Labor. ((GGCC IIVV,, aarrtt.. 4400))



a.
Can only be compelled to work to the same extent as nationals.
b.
Cannot be forced to contribute to the war effort of their enemy.
c.
These protected persons may be interned or placed in assigned residence if
the security of the Detaining power makes it absolutely necessary.  (GC IV, art. 42)
D.  Part III, Section III: Specific Protections for Protected Persons in Occupied Territory.
1.
 Human Rights. a.
"Family honor and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected."  (HR, art. 46(1))
b.
"Protected persons are entitled, in all circumstances, to respect for their
persons, their honor, their family rights, their religious convictions and
practices, and their manners and customs.  They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honor, in
particular against rape, enforced prostitution, or any form of indecent assault." (GC IV, art. 27)
2.
 Repatriation. Protected persons not nationals of the power whose territory is
occupied may leave the territory.  (GC IV arts. 35 and 48)
3.
Deportations, Evacuations, and Transfers.  (GC IV, art. 49) a.
Deportations of protected persons out of the occupied territory and
forcible individual or mass transfers are prohibited.
b.
If security or military necessity requires it, the Occupant may partially or
completely evacuate a given area, but not outside of occupied territory unless it cannot be avoided.
c.
Occupant may not relocate its own population into occupied territory.
4.
Children. (GC IV, art. 50) a.
Occupant shall facilitate proper working of institutions devoted to care and education of children.

b.
Occupant shall take all necessary steps to facilitate identification of
children and registration of parentage.
c.
Occupant shall arrange for the maintenance and education (if possible, by
persons of the same nationality, religion, and language) of children
orphaned or separated from their parents.
d.
Occupant shall take all necessary steps to identify children whose identity
is in doubt.

e.
Occupant shall not hinder application of preferential treatment for children
younger than age fifteen, expectant mothers, and mothers of children
under age seven in terms of food, medical care, and protection against
effects of war.

5.
Food and Medical Supplies. Occupant has duty to ensure population has food and medical supplies, particularly if resources of occupied territory are
inadequate. (GC IV, art. 55, paras. 1 and 3; AP I, art. 14)
6.
Hygiene and Public Health. Occupant has duty to ensure and maintain medical and hospital establishments and services and public health and hygiene in the occupied territory. (GC IV, art. 56)

7.
 Requisition of Hospitals.  In cases of urgent necessity for care of military
wounded and sick, Occupant may requisition civilian hospitals provided that Occupant arranges for care of civilian patients; if materials and stores of civilian hospitals are needed for civilian population, cannot be requisitioned. (GC IV, art. 57)
8.
 Spiritual Assistance. Occupant shall allow clergy to provide religious and
spiritual assistance to their religious communities; Occupant shall accept religious articles and books and arrange for their distribution. (GC IV, art. 58)
9.
 Relief.

a.
 Collective Relief. If all or part of the population of an occupied territory
needs supplies, then the Occupant shall agree to and facilitate relief
schemes through other states or the International Committee of the Red
Cross (ICRC); provisions shall consist of food, clothing, and medical
supplies; passage of such consignments must be permitted and protected. (GC IV, art. 59)

b.
Responsibilities of Occupant. Relief consignments do not relieve the Occupant of its obligations regarding food and medical supplies, hygiene,
and public health, nor may the Occupant divert such relief consignments
from their intended purpose.  (GC IV, art. 60)
c.
 Relief Consignments

i.
 Distribution. All contracting parties shall make every effort to
ensure transit and transport of relief consignments to occupied
territories; such consignments shall be exempt from charges, taxes,
or customs duties.  (GC IV, art. 61; AP I, art. 81)
ii.
 Individual Relief. Protected persons in occupied territories shall be
allowed to receive individual consignments sent to them.  (GC IV,
art. 62)
10.  Relief Societies. Recognized national Red Cross, Red Crescent, and Red Lion
and Sun societies shall be permitted to pursue their activities, as shall other humanitarian organizations; Occupant may not require changes to personnel or structure of such societies. (GC IV, art. 63)

## Xi. Internment Of Protected Persons


A.  **Most severe form of non-penal related restraint permitted**. Even if the detaining
Power finds that neither internment nor assigned residence serves as an adequate measure of control, it may not use any measure of control that is more severe.  (GC IV, arts. 41 and 78)
B.
Subject to periodic review (6 months) by a competent body. (GC IV, arts. 43 and 78).
C.
GC IV, Part III, Section IV: Internment, identifies the protections afforded to
protected persons who are interned: 1.
Grouped as families whenever possible.  (GC IV, art. 82)
2.
Separate from POWs and Criminals. Internees "shall be accommodated
separately from prisoners of war and persons deprived of liberty for any other
reason." (GC IV, art. 84)
3.
Proper housing. (GC IV, art. 85)
4.
Sufficient food, water and clothes. (GC IV, art. 89)
5.
Adequate infirmary with qualified doctor.  (GC IV, art. 91)
6.
Complete religious freedom.  (GC IV, art. 93)
7.
Right to control property and money.  (GC IV, art. 97)
8.
Must post convention in native language, right to petition for redress of grievances, and elect internee committee.  (GC IV, arts. 99 - 102)
9.
Right to notify family of location and send and receive letters.  (GC IV, arts.
105 - 107)
10.  Laws in place continue to apply (subject to operational imperatives); internees
cannot be sent to penitentiaries for disciplinary violations.  (GC IV, art. 117)
11.  Transfers must be done safely and notice must be given to internee's family.
(GC IV, art. 128)
12.  Must issue death certificates.  Must conduct inquiry if death of internee is
caused by sentry or other internee. (GC IV, arts. 129 - 131)
13.  Internment shall cease as soon as possible after the close of hostilities. (GC IV,
art. 133)

## Xii. Derogations

A.  In addition to outlining protected persons' status and associated protections, GC IV,
art. 5, provides for the suspension of protections generally based on hostile acts. Details on such derogations are provided for protected persons seized in two specific circumstances:
1.
Protected persons suspected or who have engaged in activities hostile to the
security of the State **in an enemy State's territory**. In these circumstances, the
State may suspend any right or privilege under GC IV that would prove prejudicial to the security of the State.
2.
Protected persons detained as spies, saboteurs, or suspected of activity hostile to
an **occupying power**. In an occupation, the Occupant may suspend only rights of communication under GC IV.
3.
Thus, under Article 5, it is clear that alien unlawful combatants seized in the
territory of the detaining power stand to have far more protections suspended than those seized by an Occupant in occupied territory.

## Xiii. Conclusion

A.  The law of occupation provides many protections for those persons finding
themselves in occupied areas.  The protections provided to the general population during conflict or occupation (GC IV, Part II) are limited in nature compared to those provided to persons qualifying for "protected person" status (GC IV, art. 4 (defining "protected persons") and GC IV, Part III).

B.
Based on recent conflicts and occupations, scholars have discussed whether the law
of occupation allows for the fundamental changes in the government structure of an
occupied state,4 and whether considerations of human rights should enter into this
discussion of central government restructuring during occupation.5


## For Further Reading


A.
 YORAM DINSTEIN, THE INTERNATIONAL LAW OF BELLIGERENT OCCUPATION (2009).

B.
 EYAL BENVENISTI, THE INTERNATIONAL LAW OF OCCUPATION (1993).



C.
 INTERNATIONAL LAW AND THE ADMINISTRATION OF OCCUPIED TERRITORIES: TWO DECADES OF ISRAELI OCCUPATION OF THE WEST BANK AND GAZA STRIP (Emma Playfair, ed., 1992).


D.
 RAJA SHEHADEH, OCCUPIER'S LAW: ISRAEL AND THE WEST BANK (1985).

## Means And Methods Of W**Arfare** I. Objectives

A.  Become familiar with the four key principles of the law of war.
B.
Understand the two major precepts regulating use of weapons and tactics in conflict.
C.
Recognize the difference between a "ruse" and "perfidy."

## Ii.  Background

A.  "Means and methods" is the phrase commonly used to refer to law governing the
conduct of hostilitiesthe *jus in bello.*  The "justness" of a struggle or how the parties ended up in armed conflict is not addressed.  Rather, this area of law deals with how parties conduct the armed conflict once engaged.
B.
In past centuries, ideals of culture, honor, religion, and chivalry helped define
battlefield norms.  Though these ideals and others still inform our sense of what conduct is "fair" in combat, four legal principles govern modern targeting decisions: (1) Military necessity, (2) Distinction, (3) Proportionality, and (4) Humanity.
C.
The laws of war also guide two related choices in combat: (1) the means, that is, the
weapons used to fight; and (2) the methods, that is, the tactics of fighting.  Judge advocates must be proficient not only in *what* may legally be targeted, but how.
D.  This is a complex arena which frequently requires consulting multiple treaties,
regulations, commentaries, and case law. Rules of engagement, policy directives, and
coalition partner or host nation concerns may further restrict legally permissible acts.
It can be frustrating, but there is no substitute for careful research to ensure a thorough grasp of the relevant law and other applicable considerations.

## Iii. Principles

A.  Principle of Military Necessity.

1.
Definition. "That principle which justifies those measures not forbidden by
international law which are indispensable for securing the complete submission
of the enemy as soon as possible." (FM 27-10, para. 3.a.). "This principle limits those measures not forbidden by international law to legitimate military objectives whose engagement offers a definite military advantage." (JP 3-60, appendix E, para. E.2.b.).

a.
 Elements. Military necessity includes two elements: (1) a military
requirement to undertake a certain measure, (2) not forbidden by the laws
of war.  A commander must articulate a military requirement, select a measure to achieve it, and ensure neither violates the law of war.
b.
 Sources. The Lieber Code, article 14, first codified military necessity as
those measures "indispensible for securing the ends of war, and which are
lawful according to the modern law and usages of war."  Though many
treaties subsequently acknowledged military necessity's role, the principle
arises predominantly from customary international law.1  The United
States follows the definitions cited in FM 27-10 and JP 3-60 above.
c.
 Limits. "Military necessity has been generally rejected as a defense for
acts forbidden by the customary and conventional laws of war . . ." (FM 27-10, para. 3.a.). Specific treaties may, however, provide an exception. The *Hostage Case* at the Nuremberg Tribunal illustrates the difference.2

i.
 General rule. General List faced a charge of allowing his soldiers to kill thousands of civilians.  He argued in part that the killings were lawful reprisals for casualties inflicted by insurgent uprisings.  The Tribunal rejected the German "Kriegsraison" war doctrine that expediency and necessity supersede international law obligations.  It held that "the rules of international law must be followed even if it results in the loss of a battle or even a war." (*Hostage Case* at 1282).
thereto, and others all acknowledge necessity, but the principle remains undefined by treaty language.



CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10, at
1230 (Feb. 19, 1948) (Case 7) [hereinafter *Hostage Case*].  The case consolidated charges against twelve German general officers for conduct while in command of armies occupying enemy countries, including the alleged taking of civilian hostages.

ii.
Rule-based exception: General Rendulic faced a charge of ordering
extensive destruction of civilian buildings and lands, while retreating
from an expected attack, in a "scorched earth" campaign to deny use to the enemy. He grossly overestimated the danger, but argued that
Hague IV authorized such destruction if "imperatively demanded by
the necessities of war."3  The Tribunal acquitted him of this charge,
holding that the law's provisions "are superior to military necessities of the most urgent nature except where the Regulations themselves specifically provide the contrary." (*Hostage Case* at 1296).
iii.
Rendulic Rule. The Rendulic case also stands for a broader
proposition regarding a commander's liability for mistakes in war.
The Tribunal observed that Rendulic's judgment may have been faulty, but was not criminal.  "[T]he conditions, as they appeared to
the defendant at the time were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made."  (*Hostage Case* at 1297).4

2.
 Military objective. The goal of military necessity is to identify and pursue
lawful military objectives that achieve the conflict's aims and swift termination. "Only a military target is a lawful object of direct attack.  By their nature, location, purpose, or use, military targets are those objects whose total or partial destruction, capture, or neutralization offer a [definite] military advantage." (JP 3-60, para. E.4.b.). Though this definition closely resembles article 52.2 of AP I, which the United States has not yet ratified, some differences exist.5

a.
"Nature, location, purpose, or use."  The ICRC Commentary to AP I, at
63637, defines these terms as follows: i.
"Nature" includes "all objects used directly by the armed forces,"
such as weapons, equipment, transports, fortifications, etc.


ii.
"Location" includes an object or site "which is of special importance
for military operations in view of its location," such as a bridge, a
deepwater port, or a piece of high ground.

iii.  "Purpose" is "concerned with the intended future use of an object,"
such as a construction site for a suspected new military facility.
iv.  "Use," on the other hand, is "concerned with [the object's] present
function," such as a school being used as a military headquarters.

b.
"Make an effective contribution to military action."  Under AP I, an object
clearly military in nature is not a military objective if it fails to meet the
"effective contribution" test for example, a tank abandoned or out of
ammunition/gas. Though JP 3-60, para. E.4.b. provides more latitude to target potential threats as well as "military adversary capability," limited resources should be directed toward highest-priority targets first.

c.
"Offers a definite military advantage."  The ICRC Commentary to AP I declares illegitimate those attacks offering only potential or indeterminate advantage. The United States takes a broader view of military advantage in JP 3-60, appendix E. This divergence causes debates about attacks on enemy morale, information operations, interconnected systems, and strategic versus tactical-level advantages, to name a few areas.6

d.
Dual use facilities. Some objects may serve both civilian and military
purposes, for instance power plants or communications infrastructure.
These may potentially be targeted, but require a careful balancing of military advantage gained versus collateral damage caused.
3.
 People. Only combatants or those directly participating in hostilities may be
targeted. Determining who counts as a combatant depends on status or conduct. Non-combatants, including civilians and persons out of combat, may not intentionally be targeted.


modern target intelligence process," while noting the psychological utility of U.S. military operations like the 1942 Doolittle raid on Tokyo).

a.
 Status-based. The easiest situation is when facing an enemy that has been
declared a "hostile force." If an individual falls into such a group, he or she may immediately be targeted without any showing of hostility.

b.
 Conduct-based. In addition to declared hostile forces, the United States targets individuals based on demonstrated hostile intent or *hostile act*.

c.
 Combatants include anyone engaging in hostilities in an armed conflict on
behalf of a party to the conflict. This can be a status- or conduct-based designation. These persons are lawful targets unless out of combat. i.
Combatants may be referred to as "lawful" or "privileged" if they
meet the GC III, article 4 requirements for POW status:
A.
 Under responsible command;

B.
Wear a fixed distinctive sign recognizable at a distance;
C.
Carry arms openly; and
D.  Abide by the laws of war.


ii.
The phrase "unprivileged enemy belligerents"  (formerly "unlawful
combatants") refers to persons who engage in combat without
meeting the criteria above.  These may be civilians participating in hostilities or members of an armed force violating the laws of war.
d.
 Non-combatants. The law of war prohibits attacks on non-combatants, to
include those sometimes referred to as *hors de combat*, or out of combat. i.
 Civilians.
A.
 General rule. Civilians and civilian property may not be the
subject or sole object of a military attack.  Civilians are persons who are not members of any armed force or group, and who do not take a direct part in hostilities (AP I, arts. 50 and 51).
B.
No indiscriminate attacks. AP I, article 51.4, prohibits attacks
not directed at a specific military objective, incapable of being
so directed, or whose effects cannot be limited.  The U.S.

considers the first two restrictions customary international law, but follows a more expansive view of the third, to permit weapons such as cluster munitions and nuclear arms.


ii.
Hors de Combat. Prohibition against attacking enemy personnel who are "out of combat."  Such persons include: A.  Prisoners of War. (Geneva III, art. 4; Hague IV, art. 23(c), (d))
B.
Surrender may be made by any means that communicates the
intent to give up.  No clear rule exists as to what constitutes
surrender. However, most agree surrender means ceasing
resistance and placing oneself at the captor's discretion.
Captors must respect (not attack) and protect (care for) those
who surrenderno reprisals.
C.
Wounded and Sick in the Field and at Sea. (GC I, art. 12; GC
II, art. 12). Combatants must respect and protect those who
have fallen by reason of sickness or wounds and who cease to fight. Civilians are included in the definition of wounded and sick ("who because of trauma, [or] disease . . . are in need of medical assistance and care and who refrain from any act of hostility"). (AP I, art. 8). Shipwrecked members of the armed forces at sea are to be respected and protected.  (GC II, art. 12; NWP 1-14M, para. 11.6).  Shipwrecked includes downed passengers or crews on aircraft, ships in peril, and castaways.

D.
 Parachutists. (FM 27-10, para. 30). Paratroopers are presumed
to be on a military mission and therefore may be targeted. Parachutists who are crewmen of a disabled aircraft are presumed to be out of combat and may not be targeted unless engaged on a hostile mission.  Parachutists, according to AP I, art. 42, "shall be given the opportunity to surrender before being made the object of attack" and are clearly treated differently from paratroopers.

E.
 Medical Personnel. Considered out of combat if exclusively
engaged in medical duties.  (GC I, art. 24.)  They may not be
directly attacked; however, accidental killing or wounding of
such personnel due to their proximity to military objectives "gives no just cause for complaint" (FM 27-10, para. 225). Medical personnel include: (GC I, art. 24)

1.
Doctors, surgeons, nurses, chemists, stretcher-bearers,
medics, corpsman, and orderlies, etc., "exclusively engaged" in direct care of the wounded and sick.
2.
Administrative staffs of medical units (drivers, generator operators, cooks, etc.).
3.
 Chaplains.

F.
Auxiliary Medical Personnel of the Armed Forces. (GC I, art.
25). To gain the GC I protection, these must have received "special training" and be carrying out their medical duties
when they come in contact with the enemy.

G.
 Relief Societies. Personnel of National Red Cross societies
and other recognized relief societies (GC I, art. 26).  Personnel of relief societies of neutral countries (GC I, art. 27).
H.  Civilian Medical and Religious Personnel. Article 15 of AP I
requires that civilian medical and religious personnel shall be respected and protected. They receive the benefits of the provisions of the Geneva Conventions and the Protocols concerning the protection and identification of medical
personnel. Article 15 also dictates that any help possible shall
be given to civilian medical personnel when civilian medical services are disrupted due to combat.
I.
Personnel Engaged in the Protection of Cultural Property.
Article 17 of the 1954 Hague Cultural Property Convention7

established a duty to respect (not directly attack) persons
engaged in the protection of cultural property.  The regulations
attached to the Convention provide for specific positions as cultural protectors and for their identification.

J.
 Journalists. Given protection as "civilians," provided they take no action adversely affecting their status as civilians.  (AP I, art. 79; considered customary international law by the U.S.).

iii.  Loss of protection. AP I, article 51.3,8 states that civilians enjoy
protection "unless and for such time as they take a direct part in
hostilities," commonly referred to as "DPH."


A.  The ICRC Commentary to AP I defines "direct part" as "acts
of war which by their nature or purpose are likely to cause
actual harm to the personnel and equipment of the enemy
armed forces."9  It explains direct participation "implies a
direct causal relationship between the activity engaged in and
the harm done to the enemy at the time and place where the activity takes place."10

B.
Consequently, under AP I, a civilian may only be lawfully,
lethally targeted "for such time" as that civilian has a direct causal relationship to harm being caused to military personnel or equipment at that point in time similar to self-defense against an immediate threat.
C.
In contrast, the United States follows a wider "direct part" test
for loss of protection.11  This test retains AP I's "for such time"
nexus, but employs a functionality test in contrast to AP I's "actual harm" requirement.

1.
The functionality test states that "[a] civilian entering the theater of operations in support or operation of sensitive, high value equipment, such as a weapon system, may be
in the Field (May 6, 1999) (on file with author) [hereinafter Law of War Memorandum].

at risk of intentional attack because of the importance of his or her duties."12


2.
Under the U.S. test, personnel whose function remains
critical at all times would remain a lawful target.  Those whose function is critical only while performing a
particularly critical, functional task would only be a lawful target during task performance.

D.  The ICRC Commentary to AP I, consistent with the U.S.
position, distinguishes general "participation in the war effort"
from DPH:  "There should be a clear distinction between direct
participation in hostilities and participation in the war effort . . .
In modern conflicts, many activities of the nation contribute to the conduct of hostilities, directly or indirectly; even the morale
of the population plays a role in this context."13  Examples of
general "participation in the war effort" that do not constitute direct participation include: 1.
Employment in munitions factories;
2.
Participation in rationing/conservation efforts;
3.
Expressions of support for enemy government;
4.
Provision of purely administrative or logistical support to
forces not deployed in hostile territory.
E.
In 2009, an ICRC study14 suggested three criteria for DPH:
threshold of harm, direct causation, and belligerent nexus.15

These elements are defined as follows:

i.
Threshold of Harm: The act must be likely to adversely
affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury or destruction on persons or objects protected against direct attack; and
ii.
Direct Causation: There must be a direct causal link
between the act and the harm likely to result either from
that act, or from a coordinated military operation of
which that act constitutes an integral part; and


iii.
Belligerent Nexus: The act must be specifically designed
to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another.


## F. Concluding Notes

i.
 Continuous Combat Function: The ICRC Interpretive
Guidance refers to individuals who constantly meet these
criteria through repeated acts as engaged in a continuous combat function, and therefore legally, lawfully targeted.
ii.
U.S. position: The Interpretive Guidance negotiations
proved contentious. A number of U.S. representatives and experts left before final completion and refused to sign. Even the ICRC recognizes that the guidance does not necessarily reflect a unanimous or majority opinion of
participating experts.16  To date, the United States has not issued a formal response or opinion regarding the ICRC Interpretive Guidance.



iii.  In summary, the boundary of behavior constituting DPH,
and thus eligibility for lethal targeting, is an unsettled area of law requiring close attention to evolving norms.

5.
 Places.

a.
 Defended Places. (FM 27-10, paras. 39 and 40).  As a general rule, any
place the enemy chooses to defend makes it subject to attack.  Defended places include: i.
A fort or fortified place;

ii.
A place occupied by a combatant force or through which a force is
passing; and

iii.  A city or town that is surrounded by defensive positions under
circumstances that the city or town is indivisible from the defensive positions.  AP I, art. 51.5(a), further prohibits bombardments that treat "as a single military objective a number of clearly separated and distinct military objectives located in a city, town, or village."

iv.  Other legitimate military objectives which are not "defended" are
also subject to attack.  (FM 27-10, para. 40(c)).
b.
 Undefended places. The attack or bombardment of towns, villages,
dwellings, or buildings which are undefended is prohibited.  (HR, art. 25). An inhabited place may be declared an undefended place (and open for
occupation) if the following criteria are met: i.
All combatants and mobile military equipment are removed;


ii.
No hostile use made of fixed military installations or establishments;


iii.  No acts of hostility shall be committed by the authorities or by the
population; and
iv.  No activities in support of military operations shall be undertaken
(presence of enemy medical units, enemy sick and wounded, and
enemy police forces are allowed).  (FM 27-10, para. 39b).

c.
 Natural environment. "It is generally lawful under the LOAC to cause collateral damage to the environment during an attack on a legitimate military target.  However, the commander has an affirmative obligation to
avoid unnecessary damage to the environment to the extent that it is
practical to do so consistent with mission accomplishment . . . .


[M]ethods and means of attack should be employed with due regard to the protection and preservation of the natural environment.  Destruction . . .
not required by military necessity and carried out wantonly is prohibited."
JP 3-60, appendix E, para. 8.b. i.
U.S. policy establishes a NEPA-like process to protect the
environment in certain conditions during overseas operations.17


ii.
AP I, article 55 further states that the environment cannot be the
object of reprisals, and that care must be taken to prevent long-term, widespread, and severe damage.  The United States objects to this
article as overbroad (for example, it might categorically rule out napalm or nuclear strikes), and does not consider it to be customary
international law.

d.
 Protected Areas. Hospital or safety zones may be established for the
protection of the wounded and sick or civilians.  (GC I, art. 23 & annex I; GC IV, art. 14). Articles 8 and 11 of the 1954 Hague Cultural Property Convention provide that certain cultural sites may be designated in an
"International Register of Cultural Property under Special Protections." The Vatican and art storage areas in Europe are designated under the convention as "specially protected."  The U.S. recently ratified this treaty.

e.
Protected Property
i.
 Civilian Objects. It is prohibited to intentionally attack civilian
property. (FM 27-10, para. 246; AP I, art. 51(2)).  A presumption of civilian property attaches to objects traditionally associated with
civilian use (dwellings, schools, etc.).  (AP I, art. 52(3)).
ii.
Medical Units and Establishments. (FM 27-10, paras. 257 and 258;
GC I, art. 19) A.  Fixed or mobile medical units shall be respected and protected.
They shall not be intentionally attacked.
B.
Protection shall not cease, unless they are used to commit "acts
harmful to the enemy."

C.
There is a warning requirement before attacking a hospital that
is committing "acts harmful to the enemy." 1.
Reasonable time must be given to comply with the
warning, before attack.
2.
 When receiving fire from a hospital, there is no duty to
warn before returning fire in self-defense. Example: Richmond Hills Hospital, Grenada; hospitals during combat in Operation Iraqi Freedom.
D.
 Medical Transport. Ground transports of the wounded and sick
or of medical equipment shall not be attacked if performing a medical function.  (GC I, art. 35).  Under GC I, medical aircraft were protected from direct attack only if they flew in
accordance with a previous agreement between the parties as to
their route, time, and altitude.  AP I extends further protection to medical aircraft flying over areas controlled by friendly
forces. Under this regime, identified medical aircraft are to be
respected, regardless of whether a prior agreement between the parties exists. (AP I, art. 25). In "contact zones," protection can only be effective by prior agreement; nevertheless medical aircraft "shall be respected after they have been recognized as such." (AP I, art. 26; considered customary international law


by U.S.). Medical aircraft in areas controlled by an adverse party must have a prior agreement in order to gain protection. (AP I, art. 27). For further discussion, see the chapter on GC I, earlier in this Deskbook.


f.
Cultural Property. There is a longstanding prohibition against attacking
cultural property. (HR, art. 27; FM 27-10, para. 45, 57; see AP I, art. 53, for similar prohibitions).  The 1954 Cultural Property Convention
elaborates, but does not expand, the protections accorded cultural property
found in these other treaties.18 Misuse will subject them to attack. The
enemy has a duty to indicate the presence of such buildings with visible and distinctive signs.

or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; . . . buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined [above] such as museums, large libraries and


g.
Works and Installations Containing Dangerous Forces. (AP I, art. 56, and AP II, art. 15). Under the Protocols, dams, dikes, and nuclear electrical
generating stations shall not be attackedeven if military objectivesif the attack will cause release of dangerous forces and "severe losses"
among the civilian population.  The United States objects to this language as creating a different standard than customary proportionality test of "excessive" incidental injury or damage.  JP 3-60, appedix E, para. 8.a. requires careful consideration of potentially catastrophic damage when attacking such targets.

i.
Military objectives near these potentially dangerous forces are also immune from attack if the attack may cause release of the forces.
Parties also have a duty to avoid locating military objectives near such locations.

ii.
AP I states that a military force may attack works and installations
containing dangerous forces only if they provide "significant and
direct support" to military operations and the attack is the only feasible way to terminate the support.  The United States objects to this provision as creating a heightened standard for attack that differs
from the historical definition of a military objective.

iii.  Parties may construct defensive weapons systems to protect works
and installations containing dangerous forces. These weapons systems may not be attacked unless they are used for purposes other than protecting the installation.

h.
Objects Indispensable to the Survival of the Civilian Population. AP I,
article 54, prohibits starvation as a method of warfare.  It is prohibited to attack, destroy, remove, or render useless objects indispensable for
survival of the civilian population, such as foodstuffs, crops, livestock, water installations, and irrigation works.
6.
 Protective Emblems. (FM 27-10, para. 238). Objects and personnel displaying
emblems are presumed to be protected under Conventions.  (GC I, art. 38) a.
Medical and Religious Emblems. i.
 Red Cross.
Means and Methods of Warfare

ii.
Red Crescent.
iii.
Red Crystal (see Additional Protocol III to the Geneva Conventions).

b.
Cultural Property Emblems
i.
"A shield, consisting of a royal blue square, one of the angles of
which forms the point of the shield and of a royal blue triangle above the square, the space on either side being taken up by a white triangle." (1954 Cultural Property Convention, arts. 16 and 17).
ii.
Hague Convention No. IX Concerning Bombardment by Naval
Forces in Time of War (art. 5).  "[L]arge, stiff, rectangular panels
divided diagonally into two colored triangular portions, the upper portion black, the lower portion white."
c.
Works and Installations Containing Dangerous Forces. Three bright
orange circles, of similar size, placed on the same axis, the distance between each circle being one radius. (AP I, annex I, art. 16.)
C.
Principle of Discrimination or Distinction. The principle of distinction is sometimes
referred to as the "grandfather of all principles," as it forms the foundation for much
of the Geneva Tradition of the law of war.  The essence of the principle is that
military attacks should be directed at combatants and military targets, and not
civilians or civilian property.  AP I, art. 48 sets out the rule: "[p]arties to the conflict
shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."

1.
AP I, art. 51(4), defines "indiscriminate attacks" as those attacks that:
a.
Are "not directed against a specific military objective" (e.g., SCUD missiles during Desert Storm);
b.
"Employ a method or means of combat the effects of which cannot be
directed at a specified military objective" (e.g., area bombing);
c.
"Employ a method or means of combat the effects of which cannot be
limited as required" (use of bacteriological weapons); and

d.
"Consequently, in each case are of a nature to strike military objectives
and civilians or civilian objects without distinction."19

2.
JP 3-60, appendix E, para. 2.e. adds, "[d]efenders are obligated to use their best efforts to segregate noncombatants and to refrain from placing military personnel or materiel in or near civilian objects or locations. Attackers are required to only use those means and methods of attack that are discriminate in effect and can be controlled, as well as take precautions to minimize collateral injury to civilians and protected objects or locations."

D.  Principle of Proportionality. The test to determine if an attack is proportional is
found in AP I, art. 51(5)(b): "[a]n attack which may be expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military advantage anticipated" violates the principle of proportionality.  (*See also* JP 3-60,
appendix E, para. E.2.d.; FM 3-60, para. 2-88).  If the target is purely military with no
known civilian personnel or property in jeopardy, no proportionality analysis need be
conducted. That is a rare circumstance, though. 1.
Incidental loss of life or injury and collateral damage. The law recognizes that
unavoidable civilian death, injury, and property destruction may occur during military operations.  Such losses are always regretted.  Commanders must consider such losses both before and during attack, and "weigh the anticipated loss of civilian life and damage to civilian property reasonably expected to
result from military operations [against] the advantages expected to be gained." JP 3-60, appendix E, para. E.2.d. The question is whether such death, injury,
and destruction are **excessive** in relation to military advantage linked to the full
context of strategy, "anticipated from those actions considered as a whole, and not only from isolated or particular parts thereof.; not whether they will occur."
Id. In other words, the prohibition is on the death, injury, and destruction being
excessive; not on the attack causing such results.20  Rules of engagement may
require elevating the decision to attack if collateral damage is anticipated to
exceed thresholds established by higher-level commanders.
2.
 Taking Precautions. AP I, art. 57.2 requires commanders to "do everything
feasible to verify that the objectives to be attacked are neither civilians nor
civilian objects[,]" "take all feasible precautions" to avoid or minimize incidental loss or damage, and choose (where possible) objectives "expected to "cause the least danger to civilian lives and civilian objects."  Some have argued this language imposes higher burdens on those parties capable of taking greater precautions, for example, claiming that a party with precision-guided munitions must always use them.  The United States disputes any such unequal burden under LOAC, and prefers the term "all practicable precautions" and a reasonableness standard for evaluating command decisions.21

3.
 Judging Commanders. AP I, art. 85 states that it is a grave breach of Protocol I to launch an attack that a commander *knows* will cause excessive incidental damage in relation to the military advantage gained.  The requirement is for a
commander to act reasonably.
a.
In judging a commander's actions one must look at the situation as the
commander saw it in light of all known circumstances.22  This standard has
both objective (what would a reasonable commander do?) and subjective (what circumstances affected this commander's judgment?) components.

b.
When conducting this inquiry, two questions seem relevant:  First, did the
commander gather a reasonable amount of information to determine whether the target was a military objective and that the incidental damage would not be disproportionate?  Second, did the commander act reasonably based on the gathered information?  Factors such as time, available staff, and combat conditions also bear on the analysis.
c.
Example:  Al Firdos Bunker. During Desert Storm, planners identified
this bunker as a military objective.  Barbed wire surrounded the complex,
camouflage concealed its location, and armed sentries guarded its entrance and exit points. Unknown to coalition planners, however, Iraqi civilians used the shelter as nighttime sleeping quarters.  The complex was bombed, resulting in nearly 300 civilian casualties.  Was there a LOAC violation? No. Based on information gathered by planners, the commander made a


reasonable assessment that the target was a military objective and that incidental damage would not outweigh the military advantage gained. Although the attack unfortunately resulted in numerous civilian deaths,
(and that in hindsight, the attack might have been disproportionate to the military advantage gained - had the attackers known of the civilians) there was no international law violation because the attackers, at the time of the attack, acted reasonably.23


4.
"The key factor in determining if a target is a lawful military object is whether
the desired effect to be rendered on the target offers a definite military advantage in the prevailing circumstances without excessive collateral damage. In all cases, consult the Staff Judge Advocate." (JP 3-60, appendix E, para.
E.4.b.(3))
E.
Principle of Unnecessary Suffering or Humanity. HR, art. 22, states that the right of
belligerents to adopt means of injuring the enemy is not unlimited.  Furthermore, "it is especially forbidden . . . to employ arms, projectiles or material calculated to cause unnecessary suffering." (HR, art. 23(e)). This concept is targeted at weaponry, and
has two basic elements. 1.
A prohibition on use of arms that are *per se* calculated to cause unnecessary
suffering.
2.
A prohibition on use of otherwise lawful arms in a manner that causes
unnecessary suffering.
3.
The key to both prohibitions is the *mens rea* or intent element.

## Iv. Weapons

A.  Two major precepts govern the regulation of weapons use in conflict.  The first is the
law of war principle prohibiting unnecessary suffering.  The second is treaty law
dealing with specific weapons or weapons systems.
B.
 Legal Review. Before discussing these areas, it is important to note first that all U.S.
weapons and weapons systems must be reviewed by the Service TJAG for legality
under the law of war.24  Reviews occur as early as possible before the award of the engineering and manufacturing development contract and again before award of the initial production contract. Legal review of new weapons is also required under AP I, art. 36.


1.
 U.S. Policy. "The acquisition and procurement of DoD weapons and weapon systems shall be consistent with all applicable domestic law and treaties and international agreements . . . , customary international law, and the law of armed conflict . . . ." (DoD Directive 5000.01,  E1.1.15).  In a "TJAG review," the discussion will often focus on whether employment of the weapon or munition
for its normal or expected use would inevitably cause injury or suffering manifestly disproportionate to its military effectiveness.  This test cannot be
conducted in isolation, but must be weighed in light of comparable, lawful weapons in use on the modern battlefield.  Weapons may be found illegal:
a.
Per se. Those weapons calculated to cause unnecessary suffering,
determined by the "usage of states."  Examples:  lances with barbed heads, irregular shaped bullets, projectiles filled with glass (FM 27-10,  34).
b.
By improper use. Using an otherwise legal weapon in a manner to cause
unnecessary suffering. Example:  using a flamethrower against enemy troops in a bunker after dousing the bunker with gasoline; the *intent* being
to inflict severe pain and injury on the enemy troops.
c.
By agreement or specific treaty prohibition. Example: certain land mines,
booby traps, and non-detectable fragments are prohibited under the Protocols to the 1980 Conventional Weapons Treaty.
C.
Consideration of Specific Weapons. As noted above, HR article 22, states that the
right of belligerents to adopt means of injuring the enemy is not unlimited. Furthermore, "it is especially forbidden . . . to employ arms, projectiles or material
calculated to cause unnecessary suffering." (HR art. 23(e)).  The following weapons
and munitions are considered under this general principle.

1.
 Small Arms Projectiles. Must not be exploding or expanding projectiles.  The
1868 Declaration of St. Petersburg prohibits exploding rounds of less than 400 grams (14 ounces).  The 1899 Hague Convention prohibits expanding rounds.


Though not a party to either convention, U.S. practice accedes to these prohibitions as being customary international law.  Current state practice is to use jacketed small arms ammunition, thereby reducing bullet expansion on impact.

a.
Hollow point ammunition. Typically, this is semi-jacketed ammunition
designed to expand dramatically upon impact.  Customary international
law and the treaties mentioned above prohibit use of this ammunition in armed conflict against combatants.

b.
Frangible ammunition. Ammunition designed to break apart upon impact,
thereby reducing ricochet. These rounds are also known to produce
wounds similar to those suffered by victims of hollow-point ammunition,
possibly violating the principle of unnecessary suffering.  Use of this
ammunition may be lawful in limited situations to significantly reduce
collateral damage to noncombatants and protected property, e.g., during a hostage rescue, aircraft security mission, or urban combat to minimize penetration of walls or risk to bystanders.
c.
High Velocity Small Caliber Arms

i.
M-16 rifle ammunition. Early critics claimed these rounds caused
unnecessary suffering. Legal review found they may cause suffering, but it is not deemed to be unnecessary.
ii.
"Matchking" ammunition. These rounds have a hollow tip, but do
not expand on impact.  The tip is designed to enhance accuracy only,
and does not cause unnecessary suffering.
d.
Sniper rifles, .50 caliber machine guns, and shotguns. Much mythology
exists about the lawfulness of these weapons.  At present, they are
considered lawful weapons, although rules of engagement (policy and tactics) may limit their use.
e.
Superfluous Injury and Unnecessary Suffering Project (SIrUS) In the late 1990s, the ICRC launched an effort purporting to increase objectivity of legality reviews for various weapons systems.  The SIrUS project proposed two criteria to determine if a weapon causes unnecessary suffering: casualty survival rates off the battlefield, and seriousness of an inflicted injury.  Later research discredited these criteria by showing that
available casualty data did not reliably account for the specific source of injury or quality of medical care provided.25


2.
 Fragmentation Weapons. (FM 27-10, para. 34)
a.
Legal unless used in an illegal manner (on a protected target or in a manner calculated to cause unnecessary suffering).
b.
Unlawful if primary effect is to injure by fragments which in the human
body are undetectable by X-ray (Protocol I, CCW, discussed below26).

D.
 Recent Restrictions. The following weapons and munitions are regulated not only by
the principle prohibiting unnecessary suffering, but also by specific treaty law.  Many
of these restrictions followed as Protocols to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (CCW), which provided a
framework for HR-like restrictions on means and methods of warfare. 1.
 Landmines. Lawful if properly used; however, regulated by a number of
different treaties. Keep in mind that while the U.S. has not signed all the applicable treaties, many of our allies have, and therefore it is important to
understand what limitations our coalition partners may be facing and the impact on U.S. operations. a.
The primary legal concern with landmines is that they may violate the law of war principle of discrimination.  A landmine cannot tell if it is being triggered by an enemy combatant or a member of the civilian population.
b.
When considering legal restrictions on landmines, three questions must be
answered: i.
What type of mine is it: anti-personnel, anti-tank, or anti-tank with
anti-handling device?
ii.
How is the mine delivered: remotely or non-remotely?


iii.  Does it ever become inactive or self-destruct?  Is it "smart" or
"dumb?"  ("Smart" mines are those that are self-destructing, selfneutralizing, or self-deactivating; "dumb" landmines are persistent,
and a threat until they are triggered or lifted.)

c.
The primary treaty that restricts U.S. use of mines is Amended Protocol II
to the CCW.27  The U.S. ratified the Amended Protocol on May 24, 1999.
Amended Protocol II: i.
Expands the scope of the original Protocol to include internal armed
conflicts;

ii.
Requires that all remotely delivered anti-personnel landmines be
"smart";

iii.  Requires that all "dumb" anti-personnel landmines be used within
controlled, marked, and monitored minefields; accordingly, they may not be remotely delivered;
iv.  Requires that all anti-personnel landmines be detectable using
available technology (i.e., that they contain a certain amount of iron so as to be detectable using normal mine sweeping equipment);
v.
Requires that the party laying mines assume responsibility to ensure
against their irresponsible or indiscriminate use; and
vi.  Provides for means to enforce compliance.


vii.  Amended Protocol II also clarifies the use of the M-18 Claymore
"mine" when used in the tripwire mode (art. 5(6)).  (When used in command-detonated mode, the Protocol does not apply, as the issue of distinction is addressed by the "triggerman" monitoring the area). Claymores may be used in the tripwire mode, without invoking the "dumb" mine restrictions of Amended Protocol II, if:
A.
They are not left out longer than 72 hours;
B.
The Claymores are located in the immediate proximity of the
military unit that emplaced them; and
C.
The area is monitored by military personnel to ensure civilians
stay out of the area.


d.
In addition to Amended Protocol II, the United States released a new
policy statement on landmines in February 2004.  Under this policy: i.
The United States has committed to eliminate persistent (dumb) landmines of all types from its arsenal.

ii.
 Persistent anti-personnel landmines are *only* stockpiled for use by the
United States in fulfillment of our treaty obligations to the Republic of Korea.


iii.  Persistent anti-vehicle mines can only be employed outside the
Republic of Korea when authorized by the President until the end of 2010.
iv.  After 2010, the United States will not employ either persistent anti
personnel or persistent anti-vehicle landmines.

e.
Although not applicable to the U.S., many nations, including many of our
allies, have signed the Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-Personnel Mines and on
Their Destruction.28  This treaty is commonly referred to as the Ottawa
Treaty and entered into force on March 1, 1999.  As of this writing, 156 States have ratified it. Although the U.S. was active in negotiations, in
September of 1997 it withdrew when other countries would not allow exceptions for the use of anti-personnel landmines mines in Korea and
other uses of smart anti-personnel landmines.  **Note:**  Ottawa only bans
anti-personnel landmines; therefore, Ottawa does not restrict our allies in
regards to anti-tank or anti-tank with anti-handling device mines.

2.
 Booby Traps. A device designed to kill or maim an unsuspecting person who disturbs an apparently harmless object or performs a normally safe act.
a.
Amended Protocol II of the 1980 Conventional Weapons Convention contains specific guidelines on the use of booby-traps in article 7,
prohibiting booby-traps and other devices which are in any way attached
or associated with:
i.
Internationally recognized protective emblems, signs or signals;
ii.
Sick, wounded, or dead persons;
iii.  Burial or cremation sites or graves;

iv.  Medical facilities, medical equipment, medical supplies or
transportation;
v.
Children's toys or other portable objects or products specifically
designed for the feeding, health, hygiene, clothing, or education of children;
vi.  Food or drink; vii.  Kitchen utensils or appliances, except in military establishments;

viii.  Objects clearly of a religious nature;

ix.  Historic monuments, works of art, or places of worship which
constitute the cultural or spiritual heritage of peoples; or

x.
Animals or their carcasses.
b.
The above list is a useful "laundry list" for the operational law attorney to
use when analyzing the legality of the use of a booby-trap.  There is one important caveat to the above list:  sub-paragraph 1(f) of article 7 prohibits the use of booby-traps against "food or drink."  Food and drink are not
defined under the Protocol, and if interpreted broadly, could include such
viable military targets as supply depots and logistical caches. Consequently, it was imperative to implement a reservation to the Protocol that recognized that legitimate military targets such as supply depots and logistical caches were permissible targets against which to employ boobytraps. The reservation clarifies the fact that stocks of food and drink, if
judged by the United States to be of potential military utility, will not be accorded special or protected status.


3.
Cluster Bombs or Combined Effects Munitions. These effective weapons
against such targets as air defense radars, armor, artillery, and personnel. However, because the bomblets are dispensed over a relatively large area and a
small percentage of them typically fail to detonate, there is an unexploded ordinance hazard associated with this weapon.  These sub-munitions are not
mines, and are not triggered to explode in the same way as anti-personnel landmines, and therefore are acceptable under the laws of armed conflict. However, if the sub-munitions are disturbed or disassembled, they may
explode.29  As with anti-personnel landmines, there have been efforts to limit or
eliminate their use by treaty.  Protocol V on Explosive Remnants of War to the 1980 Convention on Certain Conventional Weapons addresses some aspects of
the use of cluster bombs.  In short, Protocol V requires Parties to clear areas
under its control of unexploded ordnance insofar as is feasible.  The U.S.
ratified Protocol V in January 2009. Protocol V should not be confused with the Convention on Cluster Munitions, otherwise known as the Oslo Treaty, which completely bans all cluster bombs and presently has 57 parties; the U.S. has not signed the Oslo Treaty, and is unlikely to become a party in the near future.
4.
 Incendiaries. (FM 27-10, para. 36). Examples: napalm or flame-throwers. These are not illegal *per se* or illegal by treaty. The only U.S. policy guidance
is found in paragraph 36 of FM 27-10 ,which warns that they should "not be
used in such a way as to cause unnecessary suffering."

a.
 Napalm and Flame-throwers. Designed for use against armored vehicles,
bunkers, and built-up emplacements.
b.
Protocol III of the 1980 Convention on Certain Conventional Weapons 30

prohibits use of air-delivered incendiary weapons on military objectives located within concentrations of civilians.

i.
The U.S. ratified the Protocol in January 2009, with a reservation
that incendiary weapons may be used within areas of civilian

concentrations if their use will result in fewer civilian casualties.  For example:  the use of incendiary weapons against a chemical munitions factory in a city could cause fewer incidental civilian casualties, as conventional explosives would probably disperse the chemicals, where incendiary munitions would burn up the chemicals.

ii.
Tracers and white phosphorous are not incendiaries.  (Art 1(1)(b))

5.
 Lasers. U.S. policy (announced by SECDEF in Sep 95) prohibits use of lasers
specifically designed, as their sole combat function or as one of their combat
functions, to cause permanent blindness to unenhanced vision.  The policy
recognizes that collateral or incidental damage may occur as the result of
legitimate military use of lasers (range finding, targeting).  This policy mirrors
that found in Protocol IV of the CCW.31  The U.S. ratified Protocol IV in
January 2009.
6.
 Chemical Weapons. Poison has long been outlawed in battle as being a treacherous means of warfare.  Chemical weapons, more specifically, have been regulated since the early 1900's by several treaties. a.
The 1925 Geneva Protocol. (FM 27-10, para 38). Applies to all
international armed conflicts. i.
Prohibits the use of lethal, incapacitating, and biological agents. The
protocol prohibits the use of "asphyxiating, poisonous, or other gases and all analogous liquids, materials or devices. . . ."
ii.
The U.S. considers the 1925 Geneva Protocol as applying to both
lethal and incapacitating chemical agents.


iii.  Incapacitating agents are those chemical agents producing symptoms
that persist for hours or even days after exposure to the agent has
terminated.  The U.S. views Riot Control Agents (RCA) as having a "transient" effect, and thus they are NOT incapacitating agents.
Therefore, the U.S. position is that the treaty does not prohibit the
use of RCA in war, and it published an Understanding to this effect upon ratifying the treaty. (Other nations disagree with this
interpretation).  See further discussion below on RCA.


iv.  Under the Geneva Protocol of 1925, the U.S. reserved the right to
use lethal or incapacitating gases if the other side uses them first. (FM 27-10, para. 38b). The reservation did not cover the right to use
bacteriological methods of warfare in second use.  Presidential
approval was required for use. (Executive Order 11850, 40 Fed. Reg. 16187 (1975); FM 27-10, para. 38c.)  However, the Chemical
Weapons Convention (CWC), which the U.S. ratified in 1997, does not allow this "second" use.
b.
1993 Chemical Weapons Convention (CWC).32  This treaty was ratified by
the U.S. and came into force in April 1997.  Key articles are:
i.
 Article I. Parties agree to never develop, produce, stockpile,
transfer, use, or engage in military preparations to use chemical weapons. Retaliatory use (second use) is not allowed, a significant departure from 1925 Geneva Protocol. It requires the destruction of chemical stockpiles.  Each party agrees not to use RCAs as a "method of warfare."
ii.
Article II includes definitions of chemical weapons, toxic chemical,
RCA, and purposes not prohibited by the convention.
iii.  Article III requires parties to declare stocks of chemical weapons and
facilities they possess.


iv.  Articles IV and V include procedures for destruction and
verification, including routine on-site inspections.
v.
Article VIII establishes the Organization for the Prohibition of
Chemical Weapons (OPWC).
vi.  Article IX establishes "challenge inspection;" a short notice
inspection in response to another party's allegation of non
compliance.
7.
Riot Control Agents (RCA). The use of RCA by U.S. troops is governed by four key documents.  In order to determine which documents apply to the
situation at hand, you must first answer one fundamental question:  is the U.S. currently engaged in war?  If so, use of RCA is governed by the CWC and Executive Order 11850.  If not, then use of RCA is governed by CJCSI 3110.07C, and, more tangentially, by the Senate's resolution of advice and consent to the CWC.

a.
 War. In determining if the U.S. is at war for purposes of use of RCA, the
question is whether the international armed conflict the U.S. is involved in is of a scope, duration, and intensity to be an operation that triggers the
application of the law of war (i.e., a Common Article 2 conflict).
i.
 CWC. As noted above, the CWC prohibits use of RCA as a "method
of warfare." The President decides if a requested use of RCA
qualifies as a "method of warfare." As a general rule, during war, the more it looks like the RCA is being used on enemy combatants, the more likely it will be considered a "method of warfare" and prohibited.
ii.
Executive Order 11850. Guidance also exists in E.O. 11850. Note
that E.O. 11850 came into force nearly 20 years before the CWC. E.O. 11850 applies to use of RCA and herbicides.  It requires Presidential approval before use, and only allows for RCA use in
armed conflicts in **defensive** military modes to save lives, such as:
A.
 Controlling riots;
B.
Dispersing civilians where the enemy uses them to mask or
screen an attack;
C.
Rescue missions for downed pilots, escaping POWs, etc.; and
D.  For police actions in our rear areas.


iii.  What is the rationale for prohibiting use of RCA on the battlefield?
First, to avoid giving States the opportunity for subterfuge.  Keep all chemical equipment off the battlefield, even if supposedly only for
use with RCA. Second, to avoid an appearance problem, should combatants confuse RCA equipment as equipment intended for chemical warfare.  E.O. 11850 is still in effect and RCA can be used in certain defensive modes with Presidential authority.  However,
any use in which "combatants" may be involved will most likely not be approved.

b.
Operations other than war. In a situation less than a Common Article 2
conflict, the CWC and E.O. 11850 restrictions on RCA do not apply.
Rather, CJCSI 3110.07C applies. The authorization for RCA use may be
at a lower level than the President.  CJCSI 3110.07C states the United
States is not restricted by the Chemical Weapons Convention in its use of
RCAs, including against combatants who are a party to a conflict, in any of the following cases: i.
The conduct of peacetime military operations within an area of
ongoing armed conflict when the United States is not a party to the
conflict.


ii.
Consensual peacekeeping operations when the use of force is
authorized by the receiving State, including operations pursuant to
Chapter VI of the UN charter.


iii.  Peacekeeping operations when force is authorized by the Security
Council under Chapter VII of the UN charter.
iv.  These allowable uses are drawn from the language of the Senate's
resolution of advice and consent for ratification of the CWC (S. Exec. Res. 75 - Senate Report section 3373 of Apr. 24, 1997).  The Senate required that the President certify when signing the CWC that the CWC did not restrict in any way the above listed uses of RCA.
In essence, the Senate made a determination that the listed uses were not "war," triggering the application of the CWC.
A.  The implementation section of the resolution requires the
President not modify E.O. 11850. (see S. Exec Res. 75, section 2 (26)(b), s3378)
B.
The President's certification document of Apr. 25, 1997 states
that "the United States is not restricted by the convention in its
use of riot control agents in various peacetime and peacekeeping operations.  These are situations in which the U.S. is not engaged in the use of force of a scope, duration, and
intensity that would trigger the laws of war with respect to U.S. forces."


v.
Thus, during peacekeeping missions (such as Bosnia, Somalia,
Rwanda and Haiti) it appears U.S. policy will maintain that we are not a party to the conflict for as long as possible.  Therefore, RCA
would be available for all purposes. However, in armed conflicts (such as Operation Iraqi Freedom, Enduring Freedom, Desert Storm,
and Panama) it is unlikely that the President would approve the use of RCA in situations where "combatants" are involved due to the CWC's prohibition on the use of RCA as a "method of warfare."
8.
 Herbicides. E.O. 11850 renounces first use in armed conflicts of herbicides
(e.g., Agent Orange in Vietnam), except for domestic uses and to control vegetation around defensive areas.
9.
 Biological Weapons. The 1925 Geneva Protocol prohibits bacteriological
methods of warfare.  The 1972 Biological Weapons Convention33 supplements
the 1925 Geneva Protocol and prohibits the production, stockpiling, and use of biological and toxin weapons. The U.S. renounced all use of biological and toxin weapons.
10.  Nuclear Weapons. (FM 27-10, para. 35). Not prohibited by international law.
In 1996, the International Court of Justice (ICJ) issued an advisory opinion34

that "[t]here is in neither customary nor international law any comprehensive and universal prohibition of the threat or use of nuclear weapons."  However, by
a split vote, the ICJ also found that "[t]he threat or use of nuclear weapons
would generally be contrary to the rules of international law applicable in armed conflict." The ICJ stated it could not definitively conclude whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance
of self-defense, in which the very survival of the state would be at stake.

## V.  Tactics A.  "Tricking" The Enemy

1.
 Ruses. (FM 27-10, para. 48).  Injuring the enemy by legitimate deception (abiding by the law of waractions that are in good faith).  Examples of ruses include:
a.
 Naval Tactics. A common naval tactic is to rig disguised vessels or
dummy ships, e.g., to make warships appear as merchant vessels. i.
World War I:  Germany often fitted armed raiders with dummy funnels and deck cargoes and false bulwarks. The German raider Kormoran passed itself off as a Dutch merchant when approached by the Australian cruiser *Sydney*. Once close enough to open fire she hoisted German colors and fired, sinking Sydney with all hands.35

ii.
World War II:  The British Q-ship program took merchant vessels
and outfitted them with concealed armaments and a cadre of Royal
Navy crewmen disguised as merchant mariners.  When spotted by a surfaced U-boat, the disguised merchant would allow the U-boat to fire on them, then once in range, the merchant would hoist the
British battle ensign and engage.  The British sank 12 U-boats by this method.  This tactic caused the Germans to shift from surfaced
gun attacks to submerged torpedo attacks.36

b.
 Land Warfare. Creation of fictitious units by planting false information, putting up dummy installations, false radio transmissions, or using a small
force to simulate a large unit.  (FM 27-10, para. 51.) i.
World War II: During Allied Operation Fortitude prior to the D-Day
landings in 1944, the Allies transmitted false radio messages and references in bona fide format, and created a fictitious First U.S.
Army Group, supposedly commanded by General Patton, in Kent, England across the English Channel from Calais.  The desire was to mislead the Germans to believe the cross-Channel invasion would be there, instead of Normandy.  The ruse was largely successful.37

Means and Methods of Warfare



ii.
Gulf War: Coalition forces, specifically XVIII Airborne Corps and
VII Corps, used deception cells to create the impression that they were going to attack near the Kuwaiti boot heel, as opposed to the "left hook" strategy actually implemented.  XVIII Airborne Corps
set up "Forward Operating Base Weasel" near the boot heel,
consisting of a phony network of camps manned by several dozen soldiers. Using portable radio equipment cued by computers, phony radio messages were passed between fictitious headquarters.  Smoke generators and loudspeakers playing tape-recorded tank and truck
noises, and inflatable Humvees and helicopters, furthered the ruse.38
c.
Use of Enemy Property. Enemy property may be used to deceive under
the following conditions:
i.
 Uniforms. Combatants may wear enemy uniforms but cannot fight
in them.  Note, however, that military personnel not wearing their uniform may lose their POW status if captured and risk being treated
as spies (FM 27-10, paras. 54 and 74; NWP 1-14M, para. 12.5.3; AFP 110-31, para. 8-6). A.  World War II:  The most celebrated incident involving the use
of enemy uniforms was the Otto Skorzeny trial arising from the Battle of Bulge. Otto Skorzeny commanded the 150th SS Panzer Brigade. Several of his men were captured in U.S.
uniforms, their mission being to secure three critical bridges in advance of the German attack.  Eighteen of his men were executed as spies following the battle.  After the war, Skorzeny
and ten of his officers were tried for improper use of enemy uniforms, among other charges.  All were acquitted. The evidence did not show they actually fought in the uniforms,
consistent with their instructions.  The case suggests that only fighting in the enemy uniform violates the law of war.39



ii.
Colors. The U.S. position regarding the use of enemy flags is
consistent with its practice regarding uniforms, i.e., the U.S. interprets the "improper use" of a national flag (HR, art. 23(f)) to
permit the use of national colors and insignia of enemy as a ruse as
long as they are not employed during actual combat (FM 27-10,
para. 54; NWP 1-14M, para. 12.5).
iii.
Equipment. Military forces must remove all enemy insignia in order
to fight with the equipment.  Captured supplies:  may seize and use if State property. Private transportation, arms, and ammunition may be
seized, but must be restored and compensation fixed when peace is made.  (HR, art. 53)
iv.  Effect of Protocol I. AP I, art. 39(2), prohibits virtually all use of
these enemy items.  (see NWP 1-14M, para 12.5.3).  Article 39 prohibits the use in an armed conflict of enemy flags, emblems, uniforms, or insignia while engaging in attacks or "to shield, favour, protect or impede military operations."  The United States does not consider this article reflective of customary international law.  The article, however, expressly does not apply to naval warfare; thus the customary rule that naval vessels may fly enemy colors, but must hoist true colors prior to an attack, lives on.  (AP I, art 39(3); NWP
1-14M, para. 12.5.1)
2.
 Treachery/Perfidy. In contrast to the lawful ruses discussed above, treachery
and perfidy are prohibited under the law of war.  (FM 27-10, para. 50; HR, art.
23(b)). These involve injuring the enemy while relying on his adherence to the law of war (i.e., actions in bad faith). As noted below, treachery/perfidy can be further broken down into feigning and misuse. a.
 History. Condemnation of perfidy is an ancient precept of the law of war,
derived from the principle of chivalry.  Perfidy degrades the protections and mutual restraints developed in the mutual interest of all parties, combatants, and civilians.  In practice, combatants find it difficult to respect protected persons and objects if experience causes them to believe or suspect that the adversaries are abusing their claim to protection under
the law of war to gain a military advantage.  Thus, the prohibition is
directly related to the protection of war victims.  The practice of perfidy also inhibits the restoration of peace.40


b.
Feigning and Misuse. Distinguish feigning from misuse.  Feigning is
treachery resulting in killing, wounding, or capturing the enemy.  Misuse
is an act of treachery resulting in *some other* advantage to the enemy.


c.
Effect of Protocol I. According to AP I, art. 37(1), the killing, wounding,
or capture via "[a]cts inviting the confidence of an adversary to lead him
to believe that he is entitled to, or is obliged to accord, protection under
the rules of international law applicable in armed conflict, with intent to betray that confidence [are perfidious, thus prohibited acts]."  This
prohibition is considered customary international law by the United States.
Article 37(1) does not prohibit perfidy *per se* (although it comes very
close); rather, only certain perfidious acts that result in killing, wounding,
or capturing. The ICRC could not gain support for an absolute ban on
perfidy at the diplomatic conference.41  Article 37 also refers only to
confidence in international law (LOW), not moral, obligations.  The latter
was viewed as too abstract by certain delegations.42  The U.S. view
includes breaches of moral and legal obligation as being violations, citing the broadcast of an announcement to the enemy that an armistice had been agreed upon, when it had not, as being treacherous.  (FM 27-10, para. 50)
d.
Feigning incapacitation by wounds/sickness. (AP I, art. 37(1)(b)).  The
U.S. position is that HR, art. 23(b), also prohibits such acts, e.g., faking
wounds and then attacking an approaching soldier.43

e.
Feigning surrender or the intent to negotiate under a flag of truce. (AP I,
art. 37(1)(a)). Note that in order to be a violation of AP I, art. 37, the
feigning of surrender or an intent to negotiate under a flag of truce must
result in a killing, capture, or surrender of the enemy.  Simple misuse of a
flag of truce, not necessarily resulting in one of those consequences is, nonetheless, a violation of AP I, art. 38, which the U.S. also considers
customary law.  An example of such misuse would be the use of a flag of truce to gain time for retreats or reinforcements.44  AP I, art. 38, is analogous to HR, art. 23(f), prohibiting the improper use of a flag of truce.


i.
1982 Falklands War:  During the Battle for Goose Green, some
Argentinean soldiers raised a white flag.  A British lieutenant and two soldiers advanced to accept what they thought was a proffered surrender. They were killed by enemy fire in a disputed incident.
Apparently, one group of Argentines was attempting to surrender, but not the other group. The Argentine conduct was arguably treachery if those raising the white flag killed the British soldiers,
but not if other Argentines fired unaware of the white flag.  This
incident emphasizes the rule that the white flag indicates merely a
desire to negotiate, and its hoister has the burden to come forward.45


ii.
Desert Storm:  The Battle of Khafji incident was not a perfidious act.
Media speculated that Iraqi tanks with turrets pointed to the rear, then turning forward to fire when action began, was a perfidious act. DOD Report to Congress rejected that observation, stating that the
reversed turret is not a recognized symbol of surrender *per se*. "Some tactical confusion may have occurred, since Coalition ground
forces were operating under a defensive posture at that time, and were to engage Iraqi forces only on a clear indication of hostile intent, or some hostile act."46


iii.  Desert Storm:  On one occasion, however, Iraqi forces did
apparently engage in perfidious behavior.  In a situation analogous to
the Falklands War scenario above, Iraqi soldiers waved a white flag and also laid down their arms.  As Saudi forces advanced to accept the surrender, they took fire from Iraqis hidden in buildings on either
side of street.47  Similar conduct occurred during Operation Iraqi
Freedom when Iraqis took some actions to indicate surrender and then opened fire on Marines moving forward to accept the surrender.



iv.  Desert Storm:  On another occasion an Iraqi officer approached
Coalition forces with hands up indicating his intent to surrender. Upon nearing the Coalition forces he drew a concealed pistol, fired, and was killed.48

f.
Feigning civilian, noncombatant status. "Attacking enemy forces while
posing as a civilian puts all civilians at hazard."  (AP I, art. 37(1)(c); NWP 1-14M, para. 12.7.)
g.
Feigning protected status by using UN, neutral, or nations not party to the
conflict's signs, emblems, or uniforms.  (AP I, art. 37(1)(d))
i.
As an example, on 26 May 1995, Bosnian Serb commandos dressed
in uniforms, flak jackets, helmets, weapons of the French, drove up to French position on a Sarajevo bridge in an armored personnel carrier with UN emblems.  French forces thought all was normal.
The commandos, however, then proceeded to capture French peacekeepers without firing a shot.49


ii.
It is not perfidy (a violation of AP I, art 37) to (mis)use the emblem
of the UN to try to gain protected status if the UN has member forces in the conflict as combatants (even just as peacekeepers). As in the case of the misuse of the flag of truce, misuse of a UN emblem that does not result in a killing, capture, or surrender, is nonetheless a
violation of AP I, art. 38, because that article prohibits the use of the UN emblem without authorization.
h.
Misuse of Red Cross, Red Crescent, or cultural property symbol.
i.
 Designed to reinforce/reaffirm HR, art. 23(f).
ii.
GC I requires that wounded and sick, hospitals, medical vehicles,
and, in some cases, medical aircraft be respected and protected.  The protection is lost if forces are committing acts harmful to the enemy.

As an example, during the Grenada Invasion, U.S. aircraft took fire from the Richmond Hills Hospital, and consequently engaged it.50



iii.  Cultural property symbols include the 1954 Hague Cultural Property
Convention, Roerich Pact, and 1907 Hague Conventions symbols.
i.
Misuse of internationally recognized distress signals (also prohibited)..
B.
 Assassination. Hiring assassins, putting a price on the enemy's head, and offering
rewards for an enemy "dead or alive" is prohibited.  (FM 27-10, para. 31; Executive
Order 12333).  Targeting military leadership or individuals, however, is not considered assassination.  Recent U.S. practice is to offer money in exchange for
"information leading to the capture of" the individual.51

C.
 Espionage. (FM 27-10, para. 75; AP I, art. 46).  Defined as acting clandestinely (or
on false pretenses) to obtain information for transmission back to friendly territory.
Gathering intelligence while in uniform is not espionage.
1.
Espionage is not a law of war violation.
2.
There is no protection, however, under the Geneva Conventions for acts of
espionage.
3.
The spy is tried under the laws of the capturing nation; e.g., Art. 106, UCMJ.
4.
Reaching friendly lines immunizes the spy for past *espionage* activities.
Therefore, upon later capture as a lawful combatant, the former spy cannot be
tried for past espionage.
D.  Belligerent or wartime reprisals. (FM 27-10, para. 497).  Defined as an otherwise
illegal act done in response to a prior illegal act by the enemy.  The purpose of a reprisal is to get the enemy to adhere to the law of war.
1.
Reprisals are authorized if they are:

a.
Timely;
b.
Responsive to that enemy's act that violated the law of war;
c.
Follow an unsatisfied demand to cease and desist; and

d.
Proportionate to the previous illegal act. 2.
Prisoners of war and persons "in your control" cannot be objects of reprisals.
AP I prohibits reprisals against numerous other targets, such as the entire
civilian population, civilian property, cultural property, objects indispensable to
the survival of the civilian population (food, livestock, drinking water), the natural environment, and installations containing dangerous forces (dams, dikes,
nuclear power plants) (AP I, arts. 51 and 53 - 56).  The U.S. specifically objects to these restrictions as not reflective of customary international law.
3.
U.S. policy is that a reprisal may be ordered only at the highest levels (U.S.
President).


## War Crimes And Command R**Esponsibility** I. O**Bjectives**

A.  Understand the history of the law of war as it pertains to war crimes and war crimes
prosecutions, focusing on enforcement mechanisms.
B.
Understand the definition of "war crimes."

C.
 Understand the doctrine of command responsibility.
D.  Understand the jurisdictions and forums in which may war crimes be prosecuted.


## Ii.  History And Development Of War Crimes And War Crimes Prosecutions

A.
 General. Although war is not a compassionate trade, rules regarding its conduct and
trials of individuals for specific violations of the laws or customs of war have a long history.
B.
American War of Independence. The most frequently punished violations were those
committed by forces of the two armies against the persons and property of civilian inhabitants. Trials consisted of courts-martial convened by commanders of the
offenders.1


C.
American Civil War. In 1865, Captain Henry Wirz, a former Confederate officer and
commandant of the Andersonville, Georgia, prisoner of war camp, was convicted and sentenced to death by a federal military tribunal for murdering and conspiring to illtreat prisoners of war.2
D.
 Anglo-Boer War. In 1902, British courts-martial tried Boers for acts contrary to the
usages of war.3

E.
Counter-insurgency operations in the Philippines. Brigadier General Jacob H. Smith,
U.S. Army, was tried and convicted by court-martial for inciting, ordering, and permitting subordinates to commit war crimes.4

F.
 World War I. Because of German resistance to extraditionunder the 1919
Versailles peace treatyof persons accused of war crimes, the Allies agreed to permit the cases to be tried by the Supreme Court of Leipzig, Germany.  The accused were treated as heroes by the German press and public, and many were acquitted
despite strong evidence of guilt.5

G.
 World War II. Victorious allied nations undertook an aggressive program for the
punishment of war criminals. This included the joint trial of 24 senior German leaders
(in Nuremberg) and the joint trial of 28 senior Japanese leaders (in Tokyo) before
specially created International Military Tribunals; twelve subsequent trials of other
German leaders and organizations in Nuremberg under international authority and
before panels of civilian judges; thousands of trials prosecuted in various national courts, many of these by British military courts and U.S. military commissions.6

H.
 Geneva Conventions. Marked the codificationbeginning in 1949 when the
Conventions were opened for signatureof specific international rules pertaining to
the trial and punishment of those committing "grave breaches" of the Conventions.7

I.
U.S. soldiers committing war crimes in Vietnam were tried by U.S. courts-martial
under analogous provisions of the UCMJ.8



J.
 Panama. In a much-publicized case arising in the 82d Airborne Division, a First
Sergeant charged, under UCMJ, art. 118, with murdering a Panamanian prisoner, was acquitted by a general court-martial.9


K.
 Persian Gulf War. Although the United Nations Security Council (UNSC) invoked
the threat of prosecutions of Iraqi violators of international humanitarian law, the
post-conflict resolutions were silent on criminal responsibility.10

L.
 Former Yugoslavia. On Feb. 22, 1993, the UNSC established the first international
war crimes tribunal since the Nuremberg and Far East trials after World War II.11  On
May 25, 1993, the Council unanimously approved a detailed report by the Secretary General recommending tribunal rules of procedure, organization, investigative
proceedings, and other matters.12

M.
 Rwanda. On Nov. 8,1994, the UNSC adopted a Statute creating the International
Criminal Tribunal for Rwanda.13  Art. 14 of the Statute for Rwanda provides that the
rules of procedure and evidence adopted for the Former Yugoslavia shall apply to the Rwanda Tribunal, with changes as deemed necessary.

N.
 Sierra Leone. On Aug. 14, 2000, the UNSC adopted Resolution 1315, which
authorized the Secretary General to enter into an agreement with Sierra Leone and
thereby establish the Special Court for Sierra Leone (agreement signed Jan. 16, 2002). The court is a hybrid international-domestic Court to prosecute those
allegedly responsible for atrocities in the Sierra Leone.
O.  International Criminal Court. The treaty entered into force on July 1, 2002.  At the
time of this writing, 110 States have ratified the Rome Statute of the International
Criminal Court.14  Although the U.S. is in favor of a standing permanent forum to
address war crimes, the U.S. does not support the treaty as written.  The United States



12 S.C. Res. 827, U.N. SCOR, U.N. Doc. S/RES/827 (1993).
signed the Rome Treaty on Dec. 31, 2000.  Based on numerous concerns, however, President George W. Bush directed, on  May 6, 2002, that notification be sent to the Secretary General of the United Nations, as the depositary of the Rome Statute, that the United States does not intend to become a party to the treaty and has no legal obligations arising from its previous signature.

P.
 Military Commissions. In October 2006, President Bush signed the Military
Commissions Act (MCA) of 2006, significantly amending the original military commissions order issued in 2001.  In January 2009, President Obama paused prosecutions while his administration reviewed the cases and whether to continue or change the military commissions.  In November 2009, Congress amended the Military Commissions Act.

## Iii. War Crimes


A.
 Definition. The lack of a clear definition for this term stems from the fact that both
"war" and "crime" themselves have multiple definitions.  Some scholars assert that "war crime" means any violation of international law that is subject to punishment.  It appears, however, that there must be a nexus between the act and some type of armed conflict.

1.
"In contradistinction to hostile acts of soldiers by which the latter do not lose
their privilege of being treated as lawful members of armed forces, war crimes
are such hostile or other acts of soldiers or other individuals as may be punished by the enemy on capture of the offenders."15

2.
"Crimes committed by countries in violation of the international laws governing
wars. At Nuremberg after World War II, crimes committed by the Nazis were so tried."16


3.
"The term 'war crime' is the technical expression for a violation of the law of
war by any person or persons, military or civilian.  Every violation of the law of war is a war crime."17

16 Black's Law Dictionary 1583 (6th ed. 1990); cf. FM 27-10, para. 498 (defining a broader category of
"crimes under international law" of which "war crimes" form only a subset and emphasizing personal responsibility of individuals rather than responsibility of states).



4.
As with other crimes, there are Actus Reus and Mens Rea elements.
5.
Recurring problems with prosecution of war crimes:
a.
 Partiality.

i.
War crimes prosecutions are subject to criticism as "Victor's Justice"
vice truly principled prosecution. A primary focus must be on a fundamentally fair system of justice with consistent application of the laws applied to all.


ii.
In the trial of Admiral Donitz, in part for the crime of not coming to
the aid of enemy survivors of submarine attacks, he argued the point
that this was the same policy used by U.S. forces in the Pacific under Admiral Nimitz.  22 I.M.T. 559 (1949).
iii.  Influence of Realpolitik impacts prosecutions.


A.
 Yamashita. Appearance of expedited trial with sentence
(death) announced on Dec. 7, 1945. Justice Rutledge stated in his dissent that the trial was "the uncurbed spirit of revenge and
retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander."  327 U.S. 1, 41 (1946).
B.
War crimes prosecutions not pursued post-conflict. In the
Korean Conflict, 23 cases were ready for trial against POWs in U.S. custody, yet they were released under terms of the
armistice.  Prosecution was not mentioned in First Gulf War Ceasefire agreement.
b.
 Legality.
i.
Ongoing issues with respect to *nullum crimen sine lege* and ex post
facto laws, and balancing gravity of offenses with no statute of limitations against reliability of evidence/witness testimony.


ii.
Lack of a coherent system to define and enforce this criminal system
presupposes a moral order superior to the States involved.  This legally positivistic system requires a shared ethic that may or may
not exist and is certainly disputed.


iii.
Status of individuals under international law is relatively new,
although arguably has now crystallized into customary international law principle. Historically, States were held responsible as such;
however, beginning with the Treaty of Versailles, and certainly after World War II, individuals were held responsible as actors for the
State.

c.
 Recording history. Didactic function of war crimes trials is important, but
may interfere with evidentiary procedures, e.g. by admitting more evidence than may otherwise be admitted.18

B.
Customary International Law War Crimes.
1.
 General. There are many rules, both conventional and customary, imposing
requirements and prohibitions on combatants in war.  For example, HR, art. 23(d) prohibits declarations that no quarter shall be given.  But what is the result
if a particular commander refuses quarter?  These same rules contain no provision regarding the consequences of failing to meet the standard (compare
this with the Geneva Convention scheme, discussed below).  As a matter of
custom, the violation has been termed a "war crime."

2.
 Definitions.

a.
FM 27-10, para. 504, includes the following categories of customary war
crimes:  Making use of poisoned or otherwise forbidden arms or ammunition; Treacherous request for quarter; Maltreatment of dead bodies; Firing on localities which are undefended and without military
significance; Abuse of or firing on the flag of truce; Misuse of the Red
Cross emblem; Use of civilian clothing by troops to conceal their military character during battle; Improper use of privileged buildings for military purposes; Poisoning of wells or streams; Pillage or purposeless destruction; Compelling prisoners of war or civilians to perform
prohibited labor; Killing without trial spies or other persons who have committed hostile acts; Violation of surrender terms.

b.
The Rome Statute of the International Criminal Court, contains a similar,
though more expansive list, under the heading of "other serious violations of laws and customs applicable in international armed conflict."  (Rome Statute, art. 8.2.(b))
3.
It is not clear the extent to which universal jurisdiction applies to customary war
crimes.  Those prosecutions which have occurred based solely on the customary
right to try war criminals have involved States which were the victims of the crimes; there have been few, if any, cases where an unconnected third State
attempts a prosecution.  The effect of the lack of clarity has diminished,
however, with the advent of special tribunals and the International Criminal Court, both discussed below, which specifically grant jurisdiction to themselves
for these types of crimes.
C.
The Geneva Categories. The 1949 Geneva Conventions were written to protect the
various non-combatant victims of international armed conflict, namely the wounded
and sick, shipwrecked, prisoners of war, and civilians, with a Convention devoted to each. Each Convention set forth various positive and negative duties toward those persons protected by its provisions; for example, GC I, art. 12, states that the wounded and sick shall be treated humanely, and that they shall be respected (i.e., not
targeted). Failure of either of these types of duties is a breach of the Convention, and
potentially a war crime, though there is a significant qualitative difference between, for example, murdering a POW (GC III, art. 13) and failing to post a copy of the Convention in the POW's language (GC III, art. 41).  To provide greater guidance, the Conventions characterize certain breaches as "grave," and mandate particular State action.


1.
 Grave Breaches. a.
Each Convention has an article enumerating the applicable grave breaches. The articles are similar, though not exactly the same, and appear at different places in each Convention, so they cannot be considered
"common" in the same sense as Common Article 2 or 3. i.
GC I: Article 50.
ii.
GC II: Article 51.


iii.  GC III: Article 130.


iv.  GC IV: Article 147.

Common among these is the inclusion of murder, torture, causing great suffering or injuring, and medical experiments.  Compelling a protected
person to serve in his enemy's armed forces, excessive destruction of
property, and deprivation of a fair trial are also included as they are
applicable to a particular type of victim.
b.
With regard to grave breaches, each State has a duty to prosecute or
extradite. (GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146).
Specifically, each State must:
i.
Enact penal laws criminalizing grave breaches.


ii.
Bring persons alleged to have committed grave breaches before its
courts, regardless of the person's nationality.  This is the basis for "universal jurisdiction" over grave breaches.


iii.  Alternatively, hand the person over to another Party willing to
prosecute.
c.
AP I contains additional acts that constitute grave breaches of that
Protocol. (AP I, arts. 11(4) and 85).  Some of these relate to targeting
decisions, while others are restatements, or extensions, of the Geneva
Convention grave breaches.
d.
Grave breaches are only possible in an international armed conflict as
defined by Common Article 2.  In the *Tadic* case before the International Criminal Tribunal for the Former Yugoslavia (ICTY), the trial court found
the defendant Not Guilty of charged grave breaches of the Geneva Conventions solely because, in its view, the conflict was not international (i.e., not a Common Article 2 conflict).  The Appellate Chamber reversed,
ruling that the conflict was international.

2.
Other, or Simple Breaches.

a.
The Conventions do not provide a term for breaches "other" than grave breaches; "simple" breaches is the term often used.  In short, anything that is not a grave breach is a simple breach.
b.
With regard to simple breaches, the State's duty is to "take measures
necessary for the suppression of such acts."  (GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146). These measures may include prosecution, but might also be nothing more severe than additional training, depending on the breach.  By the terms of the Conventions, there is no universal jurisdiction over simple breaches.

3.
 Non-International Armed Conflict. Common Article 3 provides minimum
standards that Parties to a conflict are bound to apply, in the case of armed
conflict not of an international character occurring in the territory of one of the
High Contracting parties. Nothing in Common Article 3, however, discusses individual criminal liability for violation of those standards. Nevertheless, other instruments may make explicit reference to the standards of Common Article 3
in defining war crimes under that instrument: 1.
The Rome Statute for the International Criminal Court, discussed below,
specifically provides for prosecution of violations of Common Article 3.
(Rome Statute, article 8(c))
2.
18 U.S.C.  2441 (War Crimes Act of 1996, as amended) permits
prosecutions for violations of Common Article 3 in the U.S. federal court system.
D.
 Genocide. The Genocide Convention19 defined this crime to consist of killing and
other acts committed with intent to destroy, in whole or in part, a national, ethnic,
racial, or religious group, "whether committed in time of peace or in time of war." (Genocide Convention, art. 1).  Although the Genocide Convention defines the crime, it contemplates trial before "a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction." (Genocide Convention, art. 6).
E.
International Criminal Court. The ICC has jurisdiction over the following crimes:

1.
 Genocide. The definition (Rome Statute, art. 6) is consistent with that of the
Genocide Convention.
2.
Crimes against Humanity. "For the purpose of this Statute, "crimes against
humanity" means ... acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack..."
(Rome Statute, art. 7).  This includes acts such as murder, extermination,
enslavement, deportation or forcible transfer, imprisonment or severe depravation of physical liberty, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, persecution against any identifiable group based on political, racial, national ethnic, cultural, religious,
gender, enforced disappearance, apartheid, and other inhumane acts.

a.
Although arguably customary international law no longer requires it,
traditionally, there had to be a link between crimes against humanity and an armed conflict; the ICC Statute does not specifically require such a
nexus.

b.
However, jurisdiction exits only where the "attacks" are "widespread or
systematic."  This language suggests that there must be something akin to an armed conflict or at least large-scale governmental abuse.
3.
 War Crimes. For the purposes of the ICC (Rome Statute, art. 8), war crimes
means: a.
In the case of an International Armed Conflict:
i.
Grave Breaches of the Geneva Conventions.
ii.
Serious violations of the Laws and Customs of War applicable in
international armed conflict.  The statute lists what are considered to be serious violations.
b.
In the case of an Non-International Armed Conflict:
i.
 Violations of Common Article 3.
ii.
Other violations of the laws and customs of war "applicable ...
within the established framework of international law."
A.  The Statue provides a list of these crimes, drawn from various
treaties.


B.
It also criminalizes the attack of personnel, equipment,
installations, or vehicles involved with a UN peacekeeping or
humanitarian mission.
C.
Recognizes that the Statute does not apply to situations of mere
internal disturbances and tensions that do not rise to the level of a Common Article 3 conflict.
c.
Rome Statute, art. 9, contemplated the publication of elements to each of
the crimes discussed above, in a manner similar to the way UCMJ
offenses are broken down into constituent elements in the Manual for Courts-Martial. The elements were adopted for use in 2002.20


4.
 Crime of Aggression. The ICC will have jurisdiction over the crime of
aggression after a provision is adopted defining the crime and setting out the conditions under which the ICC will exercise this jurisdiction.  (Rome Statute,
art. 5(2)). The States parties to the court have not yet agreed upon a definition.

## F. Specialized Tribunals.

1.
 Nuremberg Tribunals. The Charter of the International Military Tribunal
defined the following crimes21 as falling within the Tribunal's jurisdiction:
a.
Crimes Against Peace. Planning, preparation, initiation, or waging of a
declared or undeclared war of aggression, or war otherwise in violation of international treaties, agreements, or assurances.  This was a charge intended to be leveled against high-level policy planners, not generally at ground commanders.


b.
Crimes Against Humanity. A collective category of major inhumane acts
committed against any (internal or alien) civilian population before or during the war.

c.
Violation of the Laws and Customs of War. The traditional violations of
the laws or customs of war; for example, targeting non-combatants.
2.
International Criminal Tribunal for the Former Yugoslavia.
a.
Crimes against Peace or Crime of Aggression are not among listed
offenses to be tried.
b.
Violations of the Laws or Customs of War (War Crimes).
i.
Traditional offenses such as murder, wanton destruction of cities,
towns or villages or devastation not justified by military necessity, firing on civilians, plunder of public or private property and taking
of hostages.
ii.
The Opinion & Judgment in the *Tadic* case set forth elements of
proof required for finding that the Law of War had been violated:
A.  An infringement of a rule of international humanitarian law
(Hague, Geneva, other);
B.
Rule must be customary law or treaty law;
C.
Violation is serious; grave consequences to victim or breach of
law that protects important values;
D.  Must entail individual criminal responsibility; and
E.
May occur in international or internal armed conflict.
c.
Crimes Against Humanity. Those inhumane acts that affront the entire
international community and humanity at large.  Crimes when committed as part of a widespread or systematic attack on civilian population.
i.
Charged in the indictments as murder, rape, torture, and persecution
on political, racial, and religious grounds, extermination, and
deportation.
ii.
In the *Tadic* Judgment, the Court cited elements as:
A.  A serious inhumane act as listed in Statute;
B.
Act committed in international or internal armed conflict;

C.
At the time accused acted there were ongoing widespread or
systematic attacks directed against civilian population;
D.  Accused knew or had reason to know he/she was participating
in widespread or systematic attack on population (actual knowledge);
E.
Act was discriminatory in nature; and
F.
Act had nexus to the conflict.


iii.  Crimes against humanity also act as a gap filler to the crime of
Genocide, because a crime against humanity may exist where a political group becomes the target.
d.
 Grave Breaches. As defined by the Geneva Conventions, may occur only
in the context of an international armed conflict.
e.
 Genocide. Any of the listed acts committed with intent to destroy, in
whole or in part, a national, ethnic, racial, or religious group.
3.
International Criminal Tribunal for Rwanda.
a.
 Genocide. Same definition as above.  Charged in all indictments for acts
such as torturing or killing of Tutsis.
b.
Crimes against Humanity. Crimes when committed as part of widespread
or systematic attack against any civil population on national, political,

ethnic, racial or religious grounds.  Charged in all indictments for acts such as extermination of all Tutsis in a village, murder, torture or rape of ethnic group (Tutsi) or liberal political supporters.

c.
Violations of Common Article 3 and AP II. These are war crimes
committed in the context of an internal armed conflict and traditionally left to domestic prosecution, but made subject to international prosecution
pursuant to the Rwanda Statute.
4.
Special Court for Sierra Leone. Categories of crimes include:
a.
Crimes Against Humanity.
b.
Violations of Common Article 3 and Additional Protocol II.
c.
Other Serious Violations of International Humanitarian Law.

d.
Certain Crimes under Sierra Leonean Law, to include offenses relating to the abuse of girls under the Prevention of Cruelty to Children Act (1926) and offenses relating to the wanton destruction of property under the Malicious Damage Act (1861).
5.
Statute of the Iraqi High Tribunal.
a.
 Genocide.

b.
Crimes Against Humanity.
c.
 War Crimes.
d.
Certain Violations of Iraqi Law, to include Tampering with the Judiciary, War against an Arab state, and Squandering Iraqi resources.

G.  Defenses in a War Crimes Prosecution. Not well-settled based upon the competing
interests of criminal law principles and the seriousness of protecting victims from war crimes, crimes against humanity, etc.  Defenses available will be specifically established in the court's constituting documents (although an argument from
customary international law is always open as a possibility for a zealous defense counsel).


1.
Official Capacity or Head of State Immunity. Historically, this was thought a complete defense rooted in sovereign immunity.  The Charter for the
International Military Tribunal explicitly rejected the defense, stating, "The official position of defendants, whether as Heads of State or responsible
officials in Government Departments, shall not be considered as freeing them
from responsibility or mitigating punishment."  (Charter of the I.M.T., art. 7). The Rome Statute for the International Criminal Court contains a similar provision (Rome Statute, art. 27).  However, in the absence of a specific treaty or like provision which disposes of the defense, it appears that the defense of official capacity exists in customary international law.  The International Court of Justice so held when it directed Belgium to quash an indictment of a sitting foreign minister of the Congo alleged to have committed war crimes, including grave breaches of the Geneva Conventions, even though the conduct was
committed prior to the charged person's tenure as foreign minister.22  Insofar as
the Court opined that Belgium could reinstate their warrant after the person had ceased to be foreign minister, the case could be limited to the proposition that, absent a conventional source which provides otherwise, the immunity of officials is absolute, but temporary.
2.
 Superior Orders. Generally, it is only a possible defense if the defendant was
required to obey the order, the defendant did not know it was unlawful, and the
order was not manifestly unlawful.

3.
 Duress. May be available as a defense; however, it may also only be taken into
account as a mitigating factor depending on the specific law governing the
court. For example, the ICTY and ICTR only allow duress to be considered as a mitigating factor and not as a full defense.  In general, duress requires that the act charged was done under an immediate threat of severe and irreparable harm
to life or limb, there was no adequate means to avert the act, the act/crime
committed was not disproportionate to the evil threatened (crime committed is
the lesser of two evils), and the situation must not have been brought on voluntarily by the defendant (i.e., did not join a unit known to commit such crimes routinely).

4.
Lack of Mental Responsibility. Not clearly defined in customary international
law. Possibly available if the defendant, due to mental disease or defect, did not
know the nature and quality of the criminal act or was unable to control his/her
conduct.

## Iv. Command Responsibility For The Criminal Acts Of Subordinates

A.  Commanders may be held liable for the criminal acts of their subordinates, even if the
commander did not personally participate in the underlying offenses, if certain criteria
are met.  Where the doctrine is applicable, the commander is accountable as if he or she was a principal.

B.
 Customary International Treatment of Command Responsibility.
1.
As with other customary international law theories of criminal liability, the
doctrine dates back almost to the beginning of organized professional armies. In his classical military treatise, Sun Tzu explained that the failure of troops in
the field cannot be linked to "natural causes," but rather to poor leadership.
International recognition of the concept of holding commanders liable for the criminal acts of their subordinates occurred as early as 1474 with the trial of
Peter of Hagenbach.23

2.
A commander is not strictly liable for all offenses committed by subordinates.
The commander's personal dereliction must have contributed to or failed to prevent the offense. Japanese Army General Tomoyuki Yamashita was convicted and sentenced to hang for war crimes committed by his soldiers in the
Philippines.  Although there was no evidence of his direct participation in the
crimes, the Military Tribunal determined that the violations were so widespread in terms of time and area, that the General either must have secretly ordered their commission or failed in his duty to discover and control them.  Most commentators have concluded that *Yamashita* stands for the proposition that where a commander *knew or should have known* that his subordinates were
involved in war crimes, the commander may be liable if he or she did not take reasonable and necessary action to prevent the crimes.24

3.
Two cases prosecuted in Germany after WWII further helped to define the doctrine of command responsibility. a.
In the High Command case, the prosecution tried to argue a strict liability standard. The court rejected this, however, and stated:  "Military
subordination is a comprehensive but not conclusive factor in fixing


criminal responsibility . . . A high commander cannot keep completely informed of the details of military operations of subordinates . . . He has the right to assume that details entrusted to responsible subordinates will be legally executed . . . There must be a personal dereliction. That can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case, it must be a personal neglect amounting to a wanton, immoral disregard of the action of his subordinates amounting to acquiescence. Any other interpretation of international law would go far beyond the basic principles of criminal law as known to civilized nations."


b.
The court in the Hostage Case found that knowledge might be presumed
where reports of criminal activity are generated for the relevant commander and received by that commander's headquarters.
C.
AP I, art. 86. Represents the first attempt to codify the customary doctrine of
command responsibility. The *mens rea* requirement for command responsibility is
"knew, or had information which should have enabled them to conclude" that war crimes were being committed and "did not take all feasible measures within their power to prevent or repress the breach."
D.  The International Criminal Tribunals for the Former Yugoslavia and Rwanda.


1.
"Individual Criminal Responsibility:  The fact that any of the acts referred to in
articles 2 to 5 of the present Statute were committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the *necessary and reasonable measures* to prevent such acts or to punish the perpetrators thereof."  (ICTY Statute, art. 7(3); ICTR Statute, art. 6(3)(emphasis added))
2.
In ICTR, the doctrine of superior responsibility was used in numerous indictments; for example, those against Theoneste Bagosora (assumed official
and *de facto* control of military and political affairs in Rwanda during the 1994
genocide) and Jean Paul Akayesu (bourgmestre (mayor), responsible for executive functions and maintenance of public order within his commune).
3.
In ICTY, the doctrine of command responsibility was used in numerous indictments, to include those against Slobodan Milosevic (President of the FRY), Radovan Karadzic (as founding member and President of Serbian
Democratic Party) and Gen. Ratko Mladic (Commander of JNA Bosnian Serb Army).

E.
The International Criminal Court establishes its definition of the requirements for the
responsibility of Commanders and other superiors in Article 28 of the Rome Statute. Note that the responsibility of military commanders and those functioning as such
addressed in subparagraph (a) differs from other superiors, i.e., civilian leaders
(subparagraph (b)), in that only military commanders are responsible for information they *should* have known.

1.
Art. 28(a) states: "A military commander or person effectively acting as a
military commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her effective
command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
a.
That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

b.
That military commander or person failed to take all necessary and
reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution."
2.
Art. 28(b) states: "With respect to superior and subordinate relationships not
described in paragraph (a), a superior shall be criminally responsible for crimes
within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control
properly over such subordinates, where: a.
The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
b.
The crimes concerned activities that were within the effective
responsibility and control of the superior; and
c.
The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution."
F.
Prosecution of command responsibility cases in the U.S. Military.
1.
It is U.S. Army policy that soldiers be tried in courts-martial rather than
international forums.  (FM 27-10, para. 507)
2.
No separate crime of command responsibility or theory of liability exists, such
as conspiracy, for command responsibility in the UCMJ.25

3.
UCMJ, art. 77, Principals.

a.
For a person to be held liable for the criminal acts of others, the non participant must share in the perpetrator's purpose of design, and "assist,
encourage, advise, instigate, counsel, command, or procure another to
commit, or assist...."  Where a person has a duty to act, such as a security
guard, inaction alone may create liability.  However, Art. 77 suggests that actual knowledge, not a lack of knowledge due to negligence, is required.
b.
At the court-martial of Captain Medina for his alleged participation in the
My Lai incident in Vietnam, the military judge instructed the panel that
they would have to find that Medina, the company commander, had actual
knowledge in order to hold him criminally liable for the massacre.  There was not enough evidence to convict Captain Medina under the standard
and he was acquitted of the charges.26  Accordingly, it appears that in
courts-martial, a prosecutor must establish actual knowledge on the part of the accused.


## V.  Forums For The Prosecution Of War Crimes A.  International V. Domestic Crimes.

1.
Built on the concept of national sovereignty, jurisdiction traditionally follows
territoriality or nationality.
2.
Universal international jurisdiction first appeared in piracy cases where the goal
was to protect trade and commerce on the high seas, an area generally believed to be without jurisdiction.

3.
Universal jurisdiction in war crimes only first came into being in the days of
chivalry where the warrior class asserted its right to punish knights that had violated the honor of the profession of arms, irrespective of nationality or location. The principle purpose of the law of war eventually became humanitarianism.  The international community argued that crimes against
"God and man" transcended the notion of sovereignty.

## B. Current International Jurisdictional Basis.


1.
Grave Breaches of the Geneva Conventions a.
As discussed above, the Geneva Conventions establishes universal
jurisdiction over those offenses which it defines as grave breaches.  "Each
High Contracting Party . . . shall bring [persons alleged to have committed grave breaches], regardless of their nationality, before its own courts."
(GC I, art. 49; GC II, art. 50; GC III, art. 129; GC IV, art. 146.)
b.
There is no comparable provision granting universal jurisdiction over
simple breaches.
2.
Violation of the Laws and Customs of War. It is not clear the extent to which customary international law vests universal jurisdiction is States for serious violations of the law of war other than Geneva Conventions grave breaches. Most prosecutions have been sponsored by States intimately affected by the violations (e.g., Nuremburg, Tokyo) or been sanctioned by UN Security Council action. Some States, notably Belgium and Spain, have been active in charging alleged war criminals around the world.  Spain has limited itself to cases where there has been a connection with Spain, generally cases where Spanish citizens have been among the victims.  Belgium, in a 1993 law, passed a true universal
jurisdiction law, which required no connection at all between the charged conduct and Belgium at all.  The law was revised in 2003, however, to limit charges to those alleged offenses with a direct link to Belgium.
3.
International Criminal Court. a.
The ICC has personal jurisdiction over:
i.
 State parties;

ii.
 Nationals of State parties;
iii.  Conduct occurring within the territory of State parties;

iv.  Non-party States acceding to jurisdiction


b.
Recently, the ICC has been granted personal jurisdiction over nationals of
non-signatory States through a UNSCR establishing jurisdiction. See
UNSCR 1593 (referring charges to the ICC against sitting Sudanese President Omar el-Bashir for war crimes).
4.
Ad hoc tribunals under the authority of UN Security Council (ICTY or ICTR) or
separate treaty (Sierra Leone).  Established via a UNSCR.
C.
 Domestic Jurisdictional Bases. Each nation provides its own jurisdiction. The
following is the current U.S. structure. 1.
 General Courts-Martial.

a.
U.S. service members are subject to court-martial jurisdiction under UCMJ, art 2(a)(1).

b.
UCMJ, art. 18, also grants general court-martial jurisdiction over "any person who by the law of war is subject to trial by military tribunal."
c.
In 2006, Congress amended UCMJ, art. 2(a)(10), to provide court-martial jurisdiction over civilians accompanying U.S. forces not only during a
declared war27 but also during "contingency operations," which would include OIF and OEF

2.
War Crimes Act of 1996. (18 U.S.C.  2441) (amended in 1997 and 2006).
Authorizes the prosecution of individuals in federal court if the victim or the perpetrator is a U.S. national (as defined in the Immigration and Nationality Act) or member of the armed forces of the U.S., whether inside or outside the
U.S.. Jurisdiction attaches if the accused commits: a.
A Grave Breach of the 1949 Geneva Conventions.
b.
Violations of certain listed articles of the Hague Conventions.
c.
Some violations of Common Article 3 of the Geneva Conventions.
d.
Violations of Amended Protocol II to the Conventional Weapons Treaty.
D.  The Military Extraterritorial Jurisdiction Act of 2000 may also serve as a basis for
prosecution for war crimes.  DoD issued implementing instructions in DoD Instruction 5525.11 on Mar. 3, 2005.
E.
 Military Commissions.
1.
Military commissions, tribunals, or provost courts may try individuals for
violations of the law of war.  (UCMJ, art. 21).  This jurisdiction is concurrent
with that of general courts-martial.

2.
Historical use can be traced back to Gustavus Adolphus and his use of a board of officers to hear law of war violations and make recommendations on their
resolution.  Frequent use in British military history, which was incorporated into
the U.S. Military from its beginning.  Used first in U.S. to try Major John Andre for spying in conjunction with General Benedict Arnold.  Later used by then General Andrew Jackson after the Battle for New Orleans in 1815, and again
during the Seminole War and the Mexican-American War.  Used extensively in
Civil War to deal with people hostile to Union forces in "occupied" territories. Its use continued in subsequent conflicts and culminated in World War II where

## 27 Previous Case Law Had Strictly Interpreted The "Time Of Declared War" Language.  U.S. V. Averette, 19

military commissions prosecuted war crimes both in the United States and extensively overseas.  Such use places the legitimacy of military commissions to try persons for war crimes firmly in customary international law.



3.
In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the Supreme Court called into
question the President's unilateral power to convene military commissions, a
power which had earlier been recognized in Ex parte Quirin, 317 U.S. 1 (1942).
Congress responded with Military Commissions Act of 2006.28  The Act was
revised and amended by the Military Commissions Act of 2009.29  Among its
most important provisions:


a.
Jurisdiction is established over an alien who is also an "unprivileged
enemy belligerent," defined as an individual other than a privileged
belligerent (i.e., one who qualifies for POW protection under GC III, art. 4) who: i.
Has engaged in hostilities against the United States or its coalition
partners;
ii.
Has purposefully and materially supported hostilities against the
United States or its coalition partners; or
ii.
Was a part of al Qaeda at the time of the alleged offense.30


b.
Sets forth in detail procedures to be followed in such commissions, which generally follow those of general courts-martial, with the exception of:
i.
 Speedy trial;
ii.
Rules related to compulsory self-incrimination; and

iii.  The requirement for pre-trial investigations (i.e., Article 32, UCMJ
investigations).31



c.
Specifically excludes from evidence any statements obtained through torture or other cruel, inhuman, or degrading treatment.  Other statements are admissible if probative and voluntary.32

d.
Defines the specific crimes amenable to trial by military commission.33

The crimes are generally consistent with "classic" war crimes, though a
new offense of "terrorism" is included.34


## For Further Reading


A.
 INTERNATIONAL MILITARY TRIBUNAL, TRIAL OF THE MAJOR WAR CRIMINALS (1947)
(42 volumes).


B.
 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG MILITARY TRIBUNALS UNDER
CONTROL COUNCIL LAW NO. 10 (1950) (15 volumes).


C.
 INTERNATIONAL JAPANESE WAR CRIMES TRIALS IN THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (209 volumes).


D.
 UNITED NATIONS WAR CRIMES COMMISSION, LAW REPORTS OF TRIALS OF WAR
CRIMINALS (1948) (15 volumes).


E.
 UNITED NATIONS WAR CRIMES COMMISSION, HISTORY OF THE UNITED NATIONS WAR
CRIMES COMMISSION (1948).
F.
Statute of the International Criminal Tribunal for the Former Yugoslavia.  S.C. Res.
827, U.N. SCOR, 48th Sess., 3217th mtg., U.N.Doc. S/RES/808 (1993); further
amended in U.N. Security Council Resolutions 1166 (13 May 1998), 1329 (30 Nov 2000) and 1411 (17 May 2002).

G.  Rules of Procedure & Evidence, International Criminal Tribunal for the Former
Yugoslavia Since 1991, Seventh Session, the Hague, U.N. Doc. IT/32/Rev. 22 (Dec. 13, 2001).
H.  S.C. Res, 955, U.N. SCOR, U.N. DOC. S/RES/955(1994), *reprinted in* 33 I.L.M.
1598, Nov. 8, 1994 [Statute for the International Criminal Tribunal for Rwanda].


I.
 YORAM DINSTEIN & MALA TABROY, WAR CRIMES IN INTERNATIONAL LAW (1996).

## Human R**Ights** I. O**Bjectives**

A.  Understand the history and development of international human rights law and how it
interacts with the law of war.
B.
Understand those human rights considered customary international law.

C.
 Understand major international human rights treaties, their scope and application, as
well as the Unites States' approach to human rights treaty law.
D.  Understand different regional international human rights systems.

## Ii.  Introduction


A.  Human rights law1 focuses on the **life and dignity of human beings**. In contrast
with most international law, international human rights law protects persons as individuals rather than as subjects of sovereign States.

B.
To best understand international human rights law, it may be useful to think in terms
of obligation versus aspiration.  International human rights law exists in two forms:
treaty law and **customary international law (CIL)**.2  Human rights law established
by treaty generally only binds the state in relation to persons within its territory and subject to its jurisdiction, and tends to be more aspirational.  Human rights law based on CIL binds all States, in all circumstances, and is thus obligatory.  For official U.S. personnel ("State actors" in the language of human rights law) dealing with civilians
outside the territory of the United States, it is CIL that establishes the human rights
considered fundamental, and therefore obligatory.  Unfortunately, however, there exists no authoritative source that articulates which human rights the United States considers to be CIL.


## Iii. History And Development Of International Human Rights Law


A.  As a field of international law, human rights did not fully develop until the years
following World War II.  The systematic abuse and near-extermination of entire populations by States gave rise to a truly revolutionary aspect of human rights as international law. Prior to modern human rights law, how States treated their own
citizens was regarded as a **purely domestic matter**. Furthermore, **individual**s had
not been the object of protection of international law.  Instead, international law had
regulated State conduct vis-a-vis other States.  International law only protected
individuals as symbols of their parent States (e.g., diplomatic immunity).  As sovereigns in the international system, States could expect other States not to interfere in their internal affairs.  Human rights law, however, pierced the "veil of sovereignty"
by seeking directly to regulate how States treated their own people within their
own borders.3
1.
 The **Nuremberg War Crimes Trials** are an example of a human rights
approach to protection. The trials held former government officials legally
responsible for the treatment of individual citizens within the borders of their state. The trials did not rely on domestic law, but rather on novel charges like "crimes against humanity."

2.
Human rights occupied a central place in the newly formed United Nations.
The **Charter of the United Nations** contains several provisions dealing directly
with human rights.  One of the earliest General Assembly resolutions, the
Universal Declaration of Human Rights4 (UDHR), is undoubtedly the
strongest international statement of universal human rights norms.


3.
Following the adoption of the **1949 Geneva Conventions**, development of the
law of war (LOW) began to stall.  Through the so-called Geneva Tradition, the
Conventions had introduced an approach to regulating armed conflict that
focused on protecting and respecting individuals.  By the mid-1950's, however, the LOW process stalled completely.  The international community largely rejected the 1956 Draft Rules for Limitation of Dangers Incurred by Civilian

induce states to remedy the inadequacies of their national law and institutions so that human rights will be respected and vindicated.").

(Dec. 10, 1948).

Populations in Time of War as a fusion of the Geneva and Hague Traditions.5

In fact, the LOW would not see a significant development in humanitarian protections until the 1977 Additional Protocols.



4.
At the same time, however, human rights law experienced a boom.  Two of the
most significant human rights treaties, the International Covenant on Civil and
Political Rights6 (ICCPR) and the International Covenant on Economic Social
and Cultural Rights,7 were adopted and opened for signature in 1966.
B.
Human Rights and Law of War. Scholars and States disagree over the interaction
between human rights law and the LOW.  Positions range from arguments that they
are entirely separate systems to a view that makes the LOW a completely integrated
component of human rights law.8  In the late-1960's, the United Nations General
Assembly took on the application of human rights during armed conflict.9

Ultimately, however, the resolutions produced few useful pronouncements and many
ambiguous references to humanitarian principles.
1.
The Traditional / United States View.10  Traditionally, human rights law and the
LOW have been viewed as separate systems of protection.  This classic view applies human rights law and the LOW to different situations and different relationships respectively.

a.
Human rights law, in the traditional view, regulates the relationship
between States and individuals within their territory and under their

8 RENE PROVOST, INTERNATIONAL HUMAN RIGHTS AND HUMANITARIAN LAW (2002).



9 G.A. Res. 2675 (1970); G. A. Res. 2444 (1968) "Respect for Human Rights in Armed Conflict"; UN
GAOR 29th Sess. Supp. No. 31. Professor Schindler argues that while the UN said "human rights" in these instruments, it meant "humanitarian law."  Dietrich Schindler, Human Rights and Humanitarian Law: The Interrelationship of the Laws, 31 AM. U. L. REV. 935 (1982) [hereinafter Schindler].



10 Michael J. Dennis, Applying Human Rights Law and Humanitarian Law in the Extraterritorial War Against Terrorism: Too Little, Too Much, Or Just Right?: Application of Human Rights Treaties Extraterritorially to Detention of Combatants and Security Internees:  Fuzzy Thinking all Around?, 12
ILSA J. INT'L & COMP. L. 459 (2006).

jurisdiction and may, however, be inapplicable during emergencies.  This reflects the original focus of human rights law, which was to protect individuals from the harmful acts of their own governments.



b.
Law of War, in the traditional view, regulates wartime relations between
belligerents and civilians as well as protected persons, usually not one's own citizens or nationals.  The traditional view notes that LOW largely predates human rights law and, therefore, was never intended to comprise a sub-category of human rights law.  This view notes that LOW includes
very restrictive triggering mechanisms which limit its application to
specific circumstances.11  As such, LOW is cited as a *lex specialis* to
situations of armed conflict and therefore applies in lieu of human rights
law.12  This view, however, is becoming increasingly hard to maintain.13
2.
 Emerging view. An expanding group of scholars and States has come to view
the application of human rights law and LOW as overlapping.  In this view,
human rights law may create rights and duties beyond national borders between States and alien individuals during periods of armed conflict as well as during
peace. The International Court of Justice recently adopted this view in two
different Advisory Opinions.14



humanitarian law in situations of armed conflict.")


14 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226. ("The Court observes that the protection of the International Covenant on Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency.").  Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004, I.C.J. 36.  The Advisory Opinion in the Wall case explained the operation of this "emerging view" as follows:
As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.  In order to answer the question put to it, the Court will have to take

C.
 Modern Challenges. As human rights are asserted on a global scale, many
governments regard them as "a system of values imposed upon them."15  States in
Asia and the Islamic world question the universality of human rights as a neo
colonialist attitude of northern states.16  It is perhaps for this reason that neither of
these two regions has a separate human rights system, such as the European, Inter- American, or African systems, discussed *infra*.

## Iv. Fundamental Human Rights: The Obligation

A.  If a specific human right falls within the category of CIL, it should be considered a
"fundamental" human right.  As such, it is binding on U.S. forces during all overseas
operations. This is because CIL is considered part of U.S. law,17 and human rights
law operates to regulate the way State actors (in this case the U.S. armed forces) treat
all humans.18  If a "human right" is considered to have risen to the status of CIL, then
it is considered binding on U.S. State actors wherever such actors deal with human
beings. Unfortunately, for the military practitioner there is no definitive "source
list" of those human rights considered by the United States to fall within this
category of fundamental human rights. As a result, the Judge Advocate (JA) must
rely on a variety of sources to answer this question.  These sources may include: the UDHR, although the United States has not taken the position that everything in the UDHR is CIL; Common Article 3 of the Geneva Conventions; and the Restatement (Third) of The Foreign Relations Law of the United States (2003).  The Restatement claims that a State violates international law when, as a matter of policy, it "practices,
encourages, or condones"19 a violation of human rights considered CIL.20


into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.



15 MANFRED NOWAK, INTRODUCTION TO THE INTERNATIONAL HUMAN RIGHTS REGIME 2 (2003)
[hereinafter NOWAK].

Confucian, and Islamic attitudes toward concepts of universal human rights); UPENDRA BAXI, THE
FUTURE OF HUMAN RIGHTS 132-35 (2002) (citing ARJUN APPADURAI, MODERNITY AT LARGE:
CULTURAL DIMENSIONS OF GLOBALIZATION (1997); MIKE FEATHERSTONE, UNDOING CULTURE:
GLOBALIZATION, POSTMODERNISM AND IDENTITY (1995)).



20 The Restatement gives the following examples of human rights that fall within the category of CIL:
genocide, slavery, murder or causing the disappearance of individuals, torture or other cruel, inhuman, or Furthermore, the Restatement makes no qualification as to where the violation might occur, or against whom it may be directed.  Therefore, it is the CIL status of certain human rights that renders respect for such human rights a legal obligation on the part of U.S. forces conducting operations outside the United States, and not the fact that they may be reflected in treaties ratified by the United States.



## V.  Human Rights Treaties

A.  The original focus of human rights lawto protect individuals from the harmful acts
of **their own governments**21must be re-emphasized.  Understanding this original
focus is essential to understand why human rights treaties, even when signed and ratified by the United States, fall within the category of "aspiration" instead of
"obligation." The original focus of human rights law was its "groundbreaking"
aspect: that international law could regulate the way a government treated the residents of its own State. Human rights law was not originally intended to protect
individuals from the actions of any government agent they encountered.  This is
partly explained by the fact that historically, other international law concepts
provided for the protection of individuals from the cruel treatment of foreign
nations.22


B.
Major Human Rights Instruments.  Until 1988, the United States had not ratified any
major international human rights treaties.23  Since then, the United States has ratified a few international human rights treaties, including the International Covenant on Civil and Political Rights; however, there are numerous human rights treaties that the United States has not ratified.  The following is a list of the major international human rights treaties including a brief description of each one and whether the United States is a party to the treaty.

1.
International Covenant on Civil and Political Rights (ICCPR) (1966).24  The
most preeminent international human rights treaty, the ICCPR was ratified by

degrading treatment or punishment, violence to life or limb, hostage taking, punishment without fair trial,
prolonged arbitrary detention, failure to care for and collect the wounded and sick, systematic racial
discrimination, and consistent patterns of gross violations of internationally recognized human rights.  Id.
the United States in 1992.  It is administered by UN Human Rights Committee
(HRC). Parties must submit reports in accordance with Committee guidelines for review by the HRC.  The HRC may question State representatives on the substance of their reports.  The HRC may report to the UN Secretary General.
The HRC issues General Comments to members but those comments have no binding force in international law. The ICCPR addresses so-called "first generation rights." These include the most fundamental and basic rights and freedoms.  **Part III** of the Covenant lists substantive rights.

a.
 The ICCPR is **expressly non-extraterritorial**. Article 2, clause 1 limits a
Party's obligations under the Covenant to "all individuals within its territory and subject to its jurisdiction . . ."  Although some commentators
and human rights bodies have argued for a disjunctive reading of "and," such that the ICCPR would cover anyone simply under the control of a
Party, 25 the United States interprets the extraterritoriality provision
narrowly.26


b.
First Optional Protocol. The First Optional Protocol to the ICCPR empowers private parties to file "communications" with the UN HRC. Communications have evolved to operate as a basis for individual causes
of action under the ICCPR. United States is not a party to the First
Protocol.
c.
Second Optional Protocol. The Second Optional Protocol to the ICCPR
seeks to abolish death penalty. United States is also not a party to the Second Protocol.
2.
International Covenant on Economic, Social, and Cultural Rights (ICESCR)
(1966). The ICESCR deals with so-called "second generation human rights."27

Included in the ICESCR are the right to self-determination (art. 1), the right to
work (art. 6), the right to adequate standard of living (art. 11), and the right to an education (art. 13). States that are party to this treaty undertake "to take



United States that the Covenant by its very terms does not apply outside the territory of a State Party. . . . This has been the U.S. position for more than 55 years").



steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of [their] available resources, with a view to achieving progressively the full realization of the rights recognized in the . . . Covenant." (art. 2).  The ICESCR does not establish a standing committee.  Reports go to the Committee on Economic, Social, and Cultural Rights, which is composed of eighteen elected members.  There is no procedure for individual complaint.  The Committee uses General Comments to Parties to highlight and encourage compliance.  As with the ICCPR, these general comments are not binding international law.  The United States is not a party to the ICESCR.

3.
Convention on the Prevention and Punishment of the Crime of Genocide28

(1948). The United States signed the Genocide Convention in 1948, transmitted
to Senate in 1949, **and ratified in 1988**. The Genocide Convention was the
first international human rights treaty and also the first one that the United States ratified.

4.
Convention Against Torture and Other Cruel, Inhuman, and Degrading
Treatment (CAT) (1984).29  The CAT is a United Nations treaty, administered
by UN Committee on Torture, which is composed of ten elected experts.  The Committee is informed by periodic reporting system and inter-state and
individual complaint procedures.  Article 20 empowers the Committee to conduct independent investigations, but it must have cooperation of the State Party subject of investigation.  The Convention Against Torture (CAT) requires States party to the Convention to take "effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under [their]
jurisdiction." (CAT, art. 2(1)).  The United States ratified the CAT in 1994.


5.
Convention on the Elimination of All Forms of Racial Discrimination30
(CEFRD) (1965).  The CEFRD prohibits and defines racial discrimination as
"any distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin" to "nullify[] or impair[] the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other filed of public



life."31  The parties agree to eliminate racial discrimination and apply rights set out in the Universal Declaration of Human Rights and the two Covenants.  The CEFRD is administered by United Nations Committee on the Elimination of Racial Discrimination.  The United States signed in 1966, transmitted to the Senate in 1978, and **ratified the CEFRD in 1994**.32

C.
The United States Treaty Process.

1.
Article II, Section 2, clause 2 of the United States Constitution enumerates to
the President the power to make treaties.  After receiving the advice and consent of two-thirds of the Senate, the President may ratify a treaty.  Article VI of the United States Constitution establishes treaties as "the supreme Law of the
Land." Consequently, treaties enjoy the same force as statutes.  When treaties
and statutes conflict, the later in time is law.

2.
Reservations, Understandings and Declarations (RUDs). The United States policy toward human rights treaties relies heavily on RUDs.  RUDs have been essential to mustering political support for ratification of human rights treaties in the United States Senate.


a.
Reservations modify treaty obligations with respect to relevant provisions
between parties that accept the reservation; reservations do not modify provisions for other parties; if a State refuses a reservation but does not oppose entry into force between the reserving State and itself, the provision proposed for reservation does not operate between the two
States.33  An example of a reservation would be the United States'
reservation to the ICCPR whereby it "reserves the right, subject to its
Constitutional constraints, to impose capital punishment on any person (other than a pregnant woman) duly convicted under existing or future laws permitting the imposition of capital punishment, including such



32 The southern congressional delegation's concern over the international community's view of Jim Crow laws in the South delayed U.S. ratification of this treaty, which was implemented by the Genocide punishment for crimes committed by persons below eighteen years of age."34


b.
Understandings are statements intended to clarify or explain matters
incidental to the operation of the treaty.  For instance, a State might elaborate on or define a term applicable to the treaty.  Understandings frequently clarify the scope of application. An example of an understanding would be the United States' understanding to the ICCPR whereby it stated "[t]hat the United States understands that this Covenant shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered therein, and otherwise by the state and local governments."35


c.
Declarations give notice of certain matters of policy or principle.  For
instance, a State might declare that it regards a treaty to be non-self executing under its domestic law.36
d.
United States practice.  When the Senate includes a reservation or
understanding in its advice and consent, the President may only ratify the treaty to the extent of the ratification or understanding.
D.
 Application of Human Rights Treaties. Understanding how the U.S. applies human
rights treaties requires an appreciation of two concepts:  non-extraterritoriality and
non-self execution. 1.
Non-extraterritoriality.  In keeping with the original focus of human rights
law, the United States interprets human rights treaties to apply to persons living in the territory of the United States, and not to any person with whom agents of
our government deal outside of our borders.37  This theory of treaty

interpretation is referred to as "non-extraterritoriality."38  The result of this theory is that these international agreements do not create treaty-based obligations on U.S. forces when dealing with civilians in another country during the course of a contingency operation. This distinction between the scope of application of fundamental human rights, which have attained CIL status, versus the scope of application of non-core treaty based human rights, is a critical aspect of human rights law JAs must grasp.


2.
Non-self execution.  While the non-extraterritorial interpretation of human
rights treaties is the primary basis for the conclusion that these treaties do not bind U.S. forces outside the territory of the U.S., JAs must also be familiar with
the concept of **treaty execution**. According to this treaty interpretation
doctrine, although treaties entered into by the United States become part of the
"supreme law of the land," 39 some are not enforceable in U.S. courts absent
subsequent legislation or executive order to "execute" the obligations created by
such treaties. a.
This "self-execution" doctrine relates primarily to the ability of a litigant
to secure enforcement for a treaty provision in U.S. courts.40  However, the
impact on whether a JA should conclude that a treaty creates a binding



functional control of United States armed forces.  This is consistent with the general interpretation that such treaties do not apply outside the territory of the United States.  *See* RESTATEMENT, *supra* note 2, at
322(2) and Reporters' Note 3; *see also* CLAIBORNE PELL REPORT ON THE INTERNATIONAL COVENANT
ON CIVIL AND POLITICAL RIGHTS, S. EXEC. COC. NO. 102-23 (Cost Estimate) (This Congressional Budget Office Report indicated that the Covenant was designed to guarantee rights and protections to people living within the territory of the nations that ratified it).



38 See Theodore Meron, *Extraterritoriality of Human Rights Treaties*, 89 AM. J. INT'L L. 78-82 (1995);
see also CENTER FOR LAW AND MILITARY OPERATIONS, THE JUDGE ADVOCATE GENERAL'S SCHOOL, UNITED STATES ARMY, LAW AND MILITARY OPERATIONS IN HAITI, 1994-1995, at 49 (1995) (citing human rights groups that mounted a defense for an Army captain that misinterpreted the ICCPR to create an affirmative obligation to correct human rights violations within a Haitian Prison).  *See also* LAWYERS'
COMMITTEE FOR HUMAN RIGHTS, PROTECT OR OBEY: THE UNITED STATES ARMY VERSUS CPT
LAWRENCE ROCKWOOD 5 (1995) (reprinting an amicus brief submitted in opposition to a prosecution pretrial motion).



39 U.S. CONST. art VI.  According to the Restatement, "international agreements are law of the United States and supreme over the law of the several states."  RESTATEMENT, s*upra* note 2, at 111.  The Restatement Commentary states the point even more emphatically: "[T]reaties made under the authority of the United States, like the Constitution itself and the laws of the United States, are expressly declared to be 'supreme Law of the Land' by Article VI of the Constitution."  Id. at cmt. d.

obligation on U.S. forces is potentially profound.  First, there is an argument that if a treaty is considered non-self-executing, it should not be regarded as creating such an obligation.41  More significantly, once a treaty is executed, it is the subsequent executing legislation or executive order, and not the treaty provisions, that is given effect by U.S. courts, and therefore defines the scope of U.S. obligations under our law.42  U.S.

courts have generally held human rights treaties to be non-self-executing and therefore not bases for causes of action in domestic courts.43


b.
The U.S. position regarding the human rights treaties discussed above is
that "the intention of the United States determines whether an agreement
is to be self-executing or should await implementing legislation."44  Thus,
the U.S. position is that its unilateral statement of intent, made through the vehicle of a declaration during the ratification process, is determinative of



41 There are several difficulties with this argument.  First, it assumes that a U.S. court has declared the treaty non-self-executing, because absent such a ruling, the non-self-executing conclusion is questionable: "[I]f the Executive Branch has not requested implementing legislation and Congress has not enacted such legislation, there is a strong presumption that the treaty has been considered self-executing by the political branches, and should be considered self-executing by the courts."  RESTATEMENT, *supra* note 2, at 111, Reporters Note 5. Second, it translates a doctrine of judicial enforcement into a mechanism whereby U.S. state actors conclude that a valid treaty should not be considered to impose international obligations upon those state actors, a transformation that seems to contradict the general view that failure to enact executing legislation when such legislation is needed constitutes a breach of the relevant treaty obligation.

"[A] finding that a treaty is not self-executing (when a court determines there is not executing legislation)
is a finding that the United States has been and continues to be in default, and should be avoided."  Id.



42 "[I]t is the implementing legislation, rather than the agreement itself, that is given effect as law in the United States."  *Id.* Perhaps the best recent example of the primacy of implementing legislation over treaty text in terms of its impact on how U.S. state actors interpret our obligations under a treaty was the conclusion by the Supreme Court of the United States that the determination of refugee status for individuals fleeing Haiti was dictated not pursuant to the Refugee Protocol standing alone, but by the implementing legislation for that treaty - the Refugee Act.  United States v. Haitian Centers Council, Inc.,
113 S. Ct. 2549 (1993).



43 In Sei Fujii v. California, 38 Cal. 2d, 718, 242 P. 2d 617 (1952), the California Supreme Court heard a claim that UN Charter Articles 55 and 56 invalidated the California Alien Land Law.  The land law had varied land owner rights according to alien status. The court struck down the law on equal protection grounds but overruled the lower court's recognition of causes of action under the UN Charter. The court stated, "The provisions in the [C]harter pledging cooperation in promoting observance of fundamental freedoms lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons immediately upon ratification." 242 P. 2d at 621-22. Federal and state courts have largely followed *Sei Fujii's* lead.

the intent of the parties.  Accordingly, if the United States adds such a declaration to a treaty, the declaration determines the interpretation the United States will apply to determining the nature of the obligation.45


3.
Derogations.  Each of the major human rights treaties to which the United
States is a party includes a derogations clause.  Derogation refers to the legal
right to suspend certain human rights treaty provisions in time of war or in
cases of national emergencies. Certain rights, however, may not be derogated
from:

a.
Right to life;
b.
 Prohibition on torture;
c.
 Prohibition on slavery;
d.
 Prohibition on *ex post* punishment;
e.
Nor may States adopt measures inconsistent with their obligations under
international law.

## Vi. International Human Rights Systems

A.
 General. International human rights are developed and implemented through a
layered structure of complimentary and coextensive systems.  "The principle of
universality does not in any way rule out regional or national differences and
peculiarities."46  As the United States participates in combined operations, JAs will
find that allies may have very different conceptions of and obligations under human
rights law. In addition to the global system of the United Nations, regional human rights systems, such as the European, Inter-American, and African systems, have developed in complexity and scope.  Judge Advocates will benefit from an
appreciation of the basic features of these systems as they relate to allies' willingness
to participate in and desire to shape operations.47 Moreover, in an occupation setting,
JAs must understand the human rights obligations, both international and domestic,
that may bind the host nation as well as how that host nation interprets those obligations.



B.
The United Nations System. An understanding of international human rights
obligations begins with the primary human rights system, the UN system, the
foundation of which is the Universal Declaration of Human Rights. 1.
The Universal Declaration of Human Rights (UDHR). The UDHR was a UN
General Assembly Resolution passed on December 10, 1946.  The UDHR is not a treaty but many of its provisions reflect CIL.  The UDHR was adopted as "a common standard of achievement for all peoples and nations."

2.
The Human Rights Committee (HRC). The HRC was established by the ICCPR
as a committee of independent human rights experts who oversee implementation of the treaty.  In this role, the HRC reviews the periodic reports submitted by states party to the ICCPR.  The HRC may also hear "communications" from individuals in states party to the (First) Optional
Protocol to the ICCPR. The United States, however, is not a party to the
First Protocol to the ICCPR.

3.
The Human Rights Council. The Human Rights Council is an inter
governmental body within the UN system made up of forty-seven States
responsible for strengthening the promotion and protection of human rights around the globe. The Council was created by the UN General Assembly in March of 2006 with the main purpose of addressing situations of human rights violations and making recommendations on them.  The Human Rights Council replaced the UN Commission on Human Rights, another General Assemblycreated body designed to monitor and strengthen international human rights practices.48

C.
The European Human Rights System.  The European Human Rights System was the
first regional human rights system and is widely regarded to be the most robust.  The European System is based on the 1950 European Convention of Human Rights, a seminal document that created one of the most powerful human rights bodies in the world, the European Court of Human Rights.
D.  The Inter-American Human Rights System.  The Inter-American System is based on
the Organization of the American States (OAS) Charter and the American

Convention on Human Rights.  The OAS Charter created the Inter-American Commission on Human Rights.  The **American Convention on Human Rights**, of which the **United States is not a party**, created the Inter-American Court of Human Rights. Because the United States is not a party to the American Convention, it is not subject to that court's jurisdiction.  However, the United States does respond to the comments and criticisms of the Inter-American Commission on Human Rights.49


E.
The African Human Rights System.  The African System falls under the African
Union, which was established in 2001. It is, therefore, the most recent and least
formed human rights system.  The African system is based primarily on the African Charter on Human and Peoples' Rights which entered into force in 1986.  The
Charter created the African Commission on Human and People's Rights.  A later
protocol created an African Court of Human and People's Rights, designed to complement the work of the Commission.  The Court came into being as a treaty
body in 2004, however, it is still in the development stage.

## C**Omparative** Law I. O**Bjectives**

A.  Realize the importance of comparative law to an international/operational attorney.

B.
Understand the difference between International Law, Foreign Law, and Comparative
Law.
C.
Recognize a general approach for researching comparative law.
D.  Gain familiarity with the differences and similarities between the predominant legal
traditions, as well as their geographical distribution.
E.
Understand the distinction between legal *traditions* and legal *systems*.

## Ii.  Defining Comparative Law

A.  What is "law?"
1.
From Black's Law Dictionary: a.
"Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force."

b.
"That which is laid down, ordained, or established."
c.
"The 'law' of a state is to be found in its statutory and constitutional
enactments, as interpreted by its courts, and, in absence of statute law, in
rulings of its courts."
d.
"With reference to its origin, 'law' is derived from judicial precedents,
from legislation, or from custom."
2.
Law may mean or embrace: a.
A body of principles, standards, and rules promulgated by government.
b.
Rules of civil conduct commanding what is right and prohibiting what is
wrong.
c.
General rules of human action, taking cognizance only of external acts, enforced by a determinate authority, which authority is human, and among human authorities is that which is paramount in a political society.
d.
Statutes or enactments of a legislative body.
e.
Judicial decisions, judgments or decrees.
f.
Long-established local custom which has the force of law.
g.
Administrative agency rules and regulations.
B.
What is the purpose of law?  This value-laden question is the subject of significant
philosophical disagreement. 1.
One answer is that the purpose of law is to provide a government of:

a.
Security: To protect against anarchy.

b.
Predictability: To allow planning of affairs with confidence in legal consequences.
c.
Reason: To provide guarantees against official arbitrariness.

2.
Some comparative law scholars refer to four "law jobs":
a.
 Social control.
b.
 Conflict resolution.
c.
Adaptation and social change.
d.
 Norm enforcement.

C.
International law governs relations between two or more States, and is comprised of
those sources of law noted in Chapter 1 *supra*, including treaty, custom, general principles of law as recognized by civilized nations, in addition to judicial decisions and the teachings of eminent "publicists" .
D.  Foreign law is the domestic law of a foreign State (e.g., the German Civil Code,
Burgerliche Besetzbuch).

E.
Comparative law is the study of the similarities and differences between the legal
approach of two or more legal traditions (e.g., comparison between the common law and the civil law approaches to criminal procedure), or between the laws of two or
more legal systems (e.g., comparison of U.S. criminal code and the German criminal
code). Comparative law can be at the theoretical or applied level.
F.
Legal Tradition is a much broader concept than a "legal system," and may be thought
of as a "legal family."  A legal tradition is a deeply rooted, historically conditioned cultural attitude about the nature of law, the role of law in society, and the proper
organization of a legal system. 1.
Generally, there are seven or eight major legal traditions/families (Common
Law, Civil Law, Tribal/customary, Talmudic, Hindu, Islamic, Asian, Socialist). Some scholars would remove the Socialist tradition from the grouping, and others would add groups such as the Scandinavian Tradition.
2.
Common Law tradition is located in England, the U.S., Canada, Australia, South Africa, and New Zealand.
3.
Civil Law traditions are primarily located in Europe and Latin America.

4.
The Muslim or Islamic Law Tradition is prevalent throughout the Middle East,
Northern Africa, Southeast Asia, and portions of the Pacific.
5.
Many countries are a mix of traditions.
6.
Even within a legal tradition, there may be much variance between legal systems (e.g., prevalence of jury trials in U.S. versus U.K.).
G.  Legal System is an operating set of legal institutions, procedures, and rules.  Thus,
there are as many legal systems as there are sovereign States in the world.
H.  Theoretical Level of comparative law:  how and why certain legal systems are
different or alike (e.g., why does the U.S. Constitution focus on freedom of speech,
whereas the premier right in the German "Basic Law" is the inviolability of dignity?).
I.
Applied Level of comparative law:  how a specific problem can best be solved under
the given social and economic circumstances; much richer variety of ideas "than
could be thought up in a lifetime by even the most imaginative jurist who was
corralled in his own system."1


1.
How positive law should be altered.
2.
How a perceived gap should be filled.
3.
What rules should be adopted in an international uniform law.

## Iii. Historical Background And Relevance Of Comparative Law

A.
 Historical Background of Comparative Law.
1.
 18th and 19th Centuries. Rise of sovereignty and the influence of legal
positivism; beginning of learned societies for cross-national legal studies and/or comparative law in France, Germany, and England.
2.
1900 - World Exhibition in Paris. Two French Scholars (Edouard Lambert and
Raymond Saleilles) organized the 1st International Congress for Comparative
Law, with goal of "A Common Law for All Mankind."
3.
 20th Century. Focus on Common Law vs. Civil Law.  Comparative Law viewed
as a tool for Private International Law (international business and commerce).
4.
 21st Century. Focus shifted to other Legal Traditions.  Comparative Law
applied to Public International Law, and viewed as useful in cross cultural understanding and diplomacy.
B.
Relevance of Comparative Law. The modern view is that Comparative Law is useful
in cross-cultural understanding and diplomacy (e.g., as an aid to negotiating more
meaningful international agreements).

1.
For the military international/operational law judge advocate, a comparative law
study is a key component of pre-deployment preparation.  Not only should the judge advocate have a basic understanding of a host nation's legal tradition and system to properly advise a commander on planned operations, but in the event that "Rule of Law" and counterinsurgency operations are planned, then a comparative law study is critical. a.
"Rule of Law pertains to the fair, competent, and efficient application and
fair and effective enforcement of the civil and criminal laws of a society
through impartial legal institutions and competent police and corrections systems.  This functional area includes judge advocates trained in international law as well as CA specialists in related subjects."  FM 3 05.40, para. 2-8.
b.
"When insurgents are seen as criminals, they lose public support.  Using a
legal system established in line with local culture and practices to deal
with such criminals enhances the Host Nation government's legitimacy. Soldiers and Marines help establish Host Nation institutions that sustain that legal regime, including police forces, court systems, and penal facilities." FM 3-24, MCWP 3-33.5, Counterinsurgency, para. 1-131.
c.
Some judge advocate activities in furtherance of Rule of Law operations will include: i.
Determine capabilities of the host nation legal system.
ii.
Review the host nation laws and legal traditions.

iii.  Advise and assist the host nation development of law consistent with
international standards.
iv.  Evaluate the host nation judicial infrastructure.

v.
Mentor the host nation judges, magistrates, prosecutors, defense
counsel, legal advisors and court administrators.
d.
From a moral perspective, it is problematic for a State to impose a legal
system that does not reflect its society's values.  From a practical
perspective, the failure of a legal system to become internalized can devastate the official legal infrastructure either because of constant
resistance or by requiring the State to rely on its coercive power to resolve
more legal disputes than it has the capacity to handle.

e.
Formalist v. Substantive conceptions of the "Rule of Law."

i.
Formalist: Focused on the *procedures* for making and enforcing law
and the *structure* of the nation's legal system.
ii.
Substantive: Focused on the content of the law and protecting certain
rights.


iii.  The distinction between "formalist" and "substantive" is a matter of
emphasis and priority.  Formalist goals are less likely to result in controversy and less likely to threaten the cultural identity.

2.
Comparative Law is also important at the international level; for example at the
International Court of Justice, which is the judicial organ of the United Nations. a.
Article 38 of the Statute of the ICJ provides a hierarchy of law which the
Court should apply to resolve disputes.  The Court shall apply: (a)
international conventions establishing rules expressly recognized by the
contesting states [i.e., treaties]; (b) international custom, as evidence of a
general practice accepted as law [i.e., customary international law]; (c) the
general principles of law, recognized by civilized nations [i.e., as
determined through comparative law studies]; (d) judicial decisions
and teachings of most highly qualified publicists of various nations, as
subsidiary means for determination of rules of law.
b.
Article 38 of the Statute of the ICJ is a useful starting point for
understanding the relative hierarchy within international law, as well as
recognizing the role that comparative law plays in determining what exactly are "the general principles of law, recognized by civilized
nations."

## Iv. Comparative M**Ethodology** A.  Comparative Law Framework:

1.
Is it a "social science" or a separate body of knowledge?


a.
Scholars appear to be arguing over whether the data obtained should be regarded simply as part of the method, or whether they should be regarded as a separate body of knowledge.
b.
Really the term "comparative law" can be used to include both the method
and the data resulting from its application.
2.
Macro-comparison v. micro-comparison. Two different species of comparative
study. There is no one single method applicable. a.
Macro-comparison refers to the study of two or more ENTIRE legal systems.
b.
Micro-comparison refers to the study of topics or aspects of two or more
legal systems.
3.
The academic aims of Comparative Law include:
a.
Aiding and informing the legislative process and law reform.
b.
Understanding the application of foreign law in the courts.
c.
Contributing to the unification and harmonization of laws.

## B. Comparative Law Methodology And Research Strategy.


1.
Identify the problem and state it precisely.  The framing of the particular issue is
crucial. What is the problem or issue?  What is the goal or objective?  What
should be compared?

2.
Identify the relevant jurisdictions/legal systems (which may be based on the
availability of research materials).
3.
Identify the foreign jurisdiction's parent legal family using sources, mode of legal thought, and ideology. Note if it happens to be a "hybrid" system or a
system predominantly based on a religious faith.
4.
Find, gather, and organize primary and secondary sources of law and other materials.

a.
Should give equal attention to historical influence and socio-economic
factors.

b.
Think about hierarchy of sources. Can use law codes, case law, law
reports, law and socio-legal journals, and legal periodicals.  Also think
about using introductory works, and then go to their bibliographies.
c.
Mandatory Authority: treaties, UN Security Council Resolutions, constitutions, statutes, regulations, etc.

d.
Persuasive Authority ("Soft Law"):  UN General Assembly Resolutions, UN Committee comments/recommendations, Agency Guidelines/Manuals, etc.

e.
Helpful Secondary Resources: Encyclopedias, Research Guides, Yearbooks, etc., which are comparative law texts on specific topics (e.g.,
comparative criminal law).  [Note:  A comparative law researcher may want to start with these first to learn the primary sources.] i.
 Encyclopedias.
A.  Encyclopedia of Public International Law. B.
International Encyclopedia of Laws (comparative):
http://www.cer-leuven.be/cerleuven/iel/outlines/outlcrim.htm
and http://www.cer-leuven.be/cerleuven/iel/published.htm.

ii.
Research Guides.

A.  Foreign Law: Current Sources of Codes and Basic Legislation
in Jurisdictions of the World http://www.foreignlawguide.com/login.htm.

B.
 CIA World Factbook:
https://www.cia.gov/library/publications/the-world-factbook/
C.
Defense Language Institute resources (Note: contains both
linguistic and extensive cultural information):
http://www.lingnet.org/default.asp
iii.
Yearbooks.

A.  Yearbook of the United Nations. B.
Digest of U.S. Practice in International Law:
http://www.state.gov/s/l/6151.htm.

C.
SIPRI Yearbook: Armaments, Disarmament and International
Security.

5.
Determine similarities and differences.  Compare the different approaches,
bearing in mind cultural differences and socio-economic factors.

a.
Ask how does the rule/institution *really* operate in practice?
b.
Are the reasons historical, pragmatic, or cultural?  Are they based on
religious beliefs, economic practices or certain trade practices, etc?
6.
Explain similarities and differences.  Includes an analysis of the rationale behind the system's approach to resolving the legal issues being studied. Analyze the legal principles in terms of their intrinsic meaning rather than according to any Western standards.


a.
Historical Background.  Consider the cultural rather than the literal
meaning of terms/phrases/concepts.
b.
Jurisprudential Basis. What purpose does the rule fulfill?  What principle,
if any, does it support or apply?  What practical effects might it have on the parties involved?
c.
 Evolutive (i.e., evolution of legal approaches).

7.
Evaluate the results. What are the key cases and legislation?  What does the
future development of this area of law hold for the jurisdiction?
a.
The comparatist is NOT seeking to be judgmental about legal systems in the sense of whether he or she believes them to be "better" or "worse" than any other given system.  Rather, the comparatist is seeking to
evaluate the efficacy of a given solution or approach to a legal problem in terms of that particular jurisdiction's cultural, economic, political and legal background.
b.
Given a set of priorities, the task is to assess the effectiveness of a solution
in terms of achieving those aims and objectives.

## C. Comparative Law Pitfalls And Perils.

1.
Pitfall/Peril #1: Cultural differences between legal systems.
a.
The same legal ideas and institutions crop up in many different and
diverse jurisdictions.
b.
Law can survive without any close connection to any particular people, period, or place (e.g., Roman law survived, despite radical change in circumstances; Civil law tradition subsists in countries as culturally and geographically diverse as Germany and Paraguay).
c.
But - every legal system is the product of its history and, very often, its
political fortunes.

d.
You have to look at the "values and attitudes" which bind the system
together and which determine the place of the legal system in the culture of the society as a whole. i.
What kind of training and habits do lawyers and judges have?
ii.
What do people think of law?
iii.  Do groups or individuals willingly go in to court?

iv.  For what purposes do people turn to lawyers?
v.
For what purpose do people make use of intermediaries?
vi.  Is there respect for law, government, and tradition?
vii.  What is the relationship between class structure and the use or nonuse of legal institutions?


viii.  What informal social controls exist in addition to or in place of
formal ones?
ix.  Who prefers which kinds of controls and why?
e.
Note: The study of Asian law, Islamic law, or Hindu law is probably going
to require greater cultural attuning from U.S. military judge advocates than studying French or German law.
2.
Pitfall/Peril #2:  The tendency to impose one's own (native) legal conceptions
and expectations on the system(s) being compared. a.
When studying non-Western legal systems and cultures, Westerners must
not approach or appraise these systems from their own Western
viewpoints or judge them by European or American standards.
i.
For example, some Western lawyers concluded in the 1970's that China had no legal system because it had no attorneys in the American or European sense, no independent judiciary, no codes, and no system of legal education. But that is like the Western visitor who assumed that there was no "proper" music played in China because he did not see Western instruments in the Chinese concert hall he visited.
ii.
Had the scholars in the 70's looked for "functional equivalents of
legal terms and concepts" and asked by which institutions and which methods are the four "law jobs" being performed, they would have concluded that there is a Chinese legal system, albeit a unique system that didn't fit into Western conceptions of law or legal
systems.
3.
Pitfall/Peril #3:  The difficulties of "comparability."  The military judge
advocate needs to be sensitive to the fact that it is difficult to "compare" legal
systems that are at different points in their evolution.  Without a baseline of
similarities there can be misunderstandings.
4.
Pitfall/Peril #4:  The desire to see a common legal pattern in legal systems.
a.
Do NOT assume that there has been a general or similar pattern of legal development.
b.
Such an assumption may obscure the discovery of the actual development
of the legal system being studied.
5.
Pitfall/Peril #5:  Danger of exclusion and ignorance of extra-legal rules.
a.
Do not ignore informal customs and practices which operate outside strict
law.
b.
Do not ignore various non-legal phenomena which ultimately influence
the state of the law. Obviously this includes revolutions, coup d'etats, and
wars, but also, radical devaluations of currency, radical changes in
government economic and legal policy, widespread unemployment, technological change, nationalistic fervor, and the gaining of independence.
c.
Historical events in education, industry, and commerce.
d.
The signing of international treaties that result in the integration of laws
that unite the particular system with others, with the inevitable effects on legislation, case law, and even the everyday practice of law (e.g., European Union law).
6.
Pitfall/Peril #6:  Linguistic and terminological problems.
a.
 The **greatest** difficulty and danger of comparative law.
b.
Physicians, chemists, mathematicians, and musicians have a common
vocabulary...but legal terminology is fraught with linguistic traps and
potential minefields of misunderstanding.
c.
Even in English speaking countries, the same word or phrase may have
different meanings.  A legal example in the common law system is stare
decisis ("let the decision stand"). American and English systems each have adopted this doctrine of precedent.  But in America it has never
acquired the formalistic authority that it has in England.  This is due to our differences in judicial and political structure and hierarchy, the great
volume of decisions in America, the conflicting precedents in different jurisdictions, etc.

d.
There are even more difficulties in translating "alien" legal concepts, since
an authentic translation often demands more than mere linguistic accuracy.
For a translation of a legal term to be meaningful, intimate knowledge is
required both of the system being translated as well as of the native system.

## V.  Common Law Tradition

A.  Common Law has its origins only in 1066 with the Battle of Hastings and subsequent
Norman Conquest.
B.
Common Law characteristics.

1.
Law created and molded by judges:  Although legislation is binding, until it has
been judicially interpreted, laws are sometimes believed to lack the authority which arises with judicial sanctification.  Legislation gains greater respect, and
perhaps authority, when judicially interpreted.

2.
Authority to find legislation invalid or interpret legislation.
3.
Lengthy, multiple judicial opinions, many of which are published.
4.
Gradual development/"gap-filling" of the law:  judicial view that no system
possesses a written law governing all conceivable disputes, therefore judges must fill the gaps by creating new law.
C.
Sources of Law.
1.
Legislation is paramount, but judicial precedent is fabric of common law.
2.
Hierarchy of courts, with lengthy published opinions. a.
But "holding of case" vs. "mere obiter dicta."
b.
Distinguishing precedent that otherwise seems on point.

3.
Judicial Independence (some lifetime tenure).
4.
Goals: certainty, but also flexibility.

5.
Criminal and Civil Trials, including jury trials (typical in U.S., not in England).

## Vi. Civil Law Tradition

A.  Background: predominant system worldwide.
1.
Spread throughout Western Europe via continental universities as an academic
system of law.
2.
Spread throughout Central and South America, and parts of Asia and Africa,
due to colonialism.

a.
The French codification occurred at the beginning of the industrial
revolution, and the German codification towards the end.  Both occurred
during the era of colonialism, and contributed to the imposition of the civil law tradition throughout much of the world.  As a result, not only are there a significant number of civil law systems in the world, there are an extremely large number of mixed systems that have components of the civil law tradition.

b.
As a percentage of the world population, civil law systems apply to four
times more people than common law systems, and twice as many States
(88 Civil Law vs. 42 Common Law States).

B.
 History.
1.
Origins in the Law of the Roman Empire with publication of the XII Tables of
Rome in 450 B.C..
2.
In approximately 534 A.D., Emperor Justinian sought to rescue Roman law
from centuries of deterioration by codifying and simplifying what had grown into an enormous and unwieldy body of law filled with conflict.  Emperor Justinian ordered the preparation of *Corpus Juris Civilis (CJC)*, which was a
compilation of the multitude of treatises and commentaries.  Once the CJC was compiled, Emperor Justinian sought to abolish all prior law except that included in CJC; he forbade study of the earlier works and even went so far as having many earlier treatises burned.
3.
 Roman Law was carried into all corners of the Roman Empire, but it was an
imposed system and did not take root in most of Europeit fell into disuse with
many cultures reverting back to customary systems after the collapse of the
Empire.  That isn't to say that there were no remnants of Roman law, and crude variants were adopted by some cultures.

4.
 Canon Law (Middle Ages): Throughout the middle ages the Canon Law system
of the Christian Church remained and evolved replacing some aspects of the government that had collapsed.  The Church assumed jurisdiction over certain aspects of family, property, and criminal law, and the Church formed its own
tribunals. Canon Law, although Christian, had borrowed heavily from Roman Law, and was influenced by the CJC, but over the centuries after the fall of the Empire, it evolved its own sets of rules and procedures that would influence development of the civil law tradition upon the re-emergence of Roman Law in
the 10th Century.
5.
 Commercial Law, developed by Merchant Guilds and Trade Associations:  As
Europe settled politically, renewed travel and commerce helped foster a desire
for predictability and efficient methods of dispute resolution.  Scholars began to look once again at the CJC. A need arose for a body of law to govern business
transactions which the ancient Roman laws did not address well.  Merchant
guilds and trade associations developed their own rules and tribunals.  These
procedures became widely practiced and accepted and were deemed "customary
law."

6.
 10th Century Revival of Roman Law: With the continued rise of the nation-state
in Europe and the re-emergence and spread of Roman Law throughout Europe's centers of learning, Roman Law once again took root, but added elements from Canon and Commercial Law.  Legal Scholars, such as St. Thomas Aquinas in
the 13th Century, wrote treatises and commentaries that were widely circulated
and studied. As the influence of the reemerging law took effect, with allowance
for some local or customary augmentation, the concept of "*Jus Commune*"2 was born.

## C. Competing Modern Traditions:

1.
The French Revolutionary Tradition: as a result of the French Revolution and
Napoleonic Rule, the French Tradition was codified and established in the
French Civil Code of 1804. a.
The characteristics of this codification were recognition of a "Separation of Powers," "Natural Rights," and "Glorification of the State."
b.
The code rejected feudalism and claimed the areas of property, contract,
and family law for the citizen.

c.
The Code was designed to be understandable by the average citizen.
2.
The German Scientific Tradition: The German Civil Code of 1896 was based
on a *scientific* reconstruction of the legal system. a.
The underlying thought to the German system was that by studying legal scholars in their historical context, a set of historically verified and
essential principles could be discovered.  That is, legal scientists can
discover inherent principles and relationships just as the physical scientist discovers natural laws from the study of physical data.

b.
The Code was prepared for those trained in the law, and thus was
responsive to the needs of lawyers, not the average citizen.
c.
Similar to the French, the German system retained a sharp separation of
powers.
d.
The German Civil Law system is distinguished from the French System,
due to customary influences on the early German legal scholars who wanted to integrate local custom into the Roman "Jus Commune."
D.
Civil Law Jurisdictions in General.
1.
Secular in nature (post-1789).
a.
Law no longer considered of divine origin.
b.
Ultimate lawmaking power lay in the State.


c.
Heavily influenced by 19th Century Liberalism.
i.
 Individual autonomy.

ii.
 Freedom of contract.


iii.  Respect for private property.

2.
Supremacy of the State.

a.
Only statutes enacted by the legislature are law.

b.
Books and articles written by scholars have a central place in legal traditions

i.
Trace importance back to Roman juris consuls
ii.
Germany used to send difficult legal issues to law school faculties
for discussion, debate, and ultimate decision

iii.  Contrast with Common Law States.


A.  Common Law: Know the names and writings of great jurists
from the past
B.
Civil Law: Know the names and writings of great legal
scholars of the past
3.
Elements of the Law.
a.
Statutes enacted by a legislature. Five Basic Codes typically found in civil
law jurisdictions

i.
 Civil Code.

ii.
Commercial Code.
iii.  Code of Civil Procedure.


iv.
 Penal Code.
v.
Code of Criminal Procedure.
b.
Legislation promulgated by the executive, by authority delegated from the
legislature.

c.
 Custom.
4.
Role of the Judge. a.
Apply the law.
b.
Traditionally no judicial review of acts of the legislature.  However, there is a new trend toward Constitutionalism. i.
Created special constitutional courts.  Not part of the judicial system.
Couldn't give judges authority to overrule the legislature
ii.
France: Constitutional Council

c.
Judges viewed as functionaries, civil servants, and "Expert clerks":
Presented with a fact pattern; couple it with the appropriate legislative
provision.
5.
The Role of Lawyers. a.
 Judge.

b.
Public Prosecutor.
i.
Prosecutor in criminal actions.


ii.
Represent public interest in judicial proceedings between private
individuals.
c.
 Government lawyer.

d.
 Advocate.
e.
 Notary.

i.
Drafts legal instruments (wills, corporate charters).
ii.
Authenticates instruments.
iii.  Public records repository.


f.
 Law-professor/Scholar. Common law is the law of judges; but civil law is
the law of the professors.
6.
Interpretation of Statutes. a.
Theoretically: legislature only.
b.
 French system:

i.
Created a new governmental body.
ii.
Not a part of the judiciary.

iii.
Power to *quash* incorrect interpretations by the courts.

iv.  Maintained separation of powers.
A.
 Delegated authority from legislature.
B.
 Upholds legislative supremacy.
v.
Evolved into a Supreme Court.
A.  Supreme Court of Cassation. B.
Quash and "instruct" lower courts.  Reviews issues of law only,
not issues of fact.
c.
Interpretation of Unclear Provisions.  "In interpreting the statute, no other
meaning can be attributed to it than that made clear by the actual significance of the words according to the connections between them, and
by the intention of the legislature."
d.
Civil Law interpretation in the absence of specific law:  "If a controversy
cannot be decided by a precise provision, consideration is given to provisions that regulate similar cases or analogous matters; if the case still remains in doubt, it is decided according to general principles of the legal order to the state."
7.
 Legal Classifications.
a.
 Public law.
b.
 Private law.

i.
 Civil Law. Persons, the family, inheritance, property, and
obligations.

ii.
Commercial Law. In many Civil Law jurisdictions, commercial law
has remained its own distinct legal system.
8.
Jurisdiction of Civil Law Courts. a.
 "Ordinary" courts.

b.
 Commercial courts.

c.
Administrative Courts (e.g., Council of State (France)).
9.
Civil Procedure.
a.
Trial. Isolated hearings dominated by written communications.
b.
Hearing judge vs. Adjudicator.
c.
Attorney's fees based on an official schedule.
d.
Appeal.
e.
Decisions.

10. Criminal Procedure.
a.
Typically three phases: i.
Investigative, which the public prosecutor directs.
ii.
Examining.
A.
Controlled by the examining judge.
B.
Primarily written record, prepared by the examining judge.
C.
Not public.

D.
Examining judge determines:
1.
Crime committed?
2.
Accused is perpetrator?  If yes, trial.
iii.
Trial.

A.  Presumption of Innocence.
B.
Jury Trial.

1.
Range of offenses depends on the code.
2.
 Size.
3.
 Unanimity.

## Vii. Tribal Or Customary Tradition


A.  The Tribal or Customary legal tradition is a relatively new concept, although it
describes the oldest of legal traditions.  Interestingly, in spite of a multitude of
geographic and cultural variables, it is within the customary tradition that scholars have found the most constants. 1.
 Indigenous systems. All of the legal traditions have their roots in various
customary systems, and were influenced by them.
2.
Modern View:  still influential on legal systems in many areas of the world,
including many of our modern concepts; typically found in family and property law.

3.
Systems which are largely customary in nature are still active in almost every
part of the world.  Representative systems can be found throughout the South Pacific, Asia, Africa, Australia, and even in the United States on Native American Reservationsalthough it must be conceded that they are not purely
customary. In fact, it is very difficult to find a pure customary legal system today.
B.
 Characteristics:
1.
Oral (vs. written) tradition.
2.
Legal system is seen as an integral to "way of life" rather than a distinct system.
3.
Council of Elders / Advisors, whose function is to interpret and decide issues within the legal system, even if the group has a Chief or King.
4.
Tendency to informal dispute resolution, even in criminal cases, and decision is
based on the best interests of the community.
5.
Family law characterized by mutual consent and informality.
6.
Lacking law of obligation (e.g., no contracts or torts), when issues arise, they are dealt with relatively informally by the community or council of elders.
7.
Property Law:  the basic ideas are to keep large families together since many
members were necessary for the many tasks of daily life, and concepts of property look more towards communal use rather than individual ownership. Customary concepts of property are getting a fresh look as models for
environmental laws and regulations in more modern traditions and systems.

## Viii. Talmudic Tradition

A.  Talmudic Law is one of the oldest remaining legal traditions (along with the Hindu
Tradition).

1.
Written Torah:  revelations given to Moses, which were recorded as the first
five books (Genesis, Exodus, Leviticus, Numbers, and Deuteronomy) of the Hebrew Bible, approximately 1400 B.C.. a.
There is an all encompassing concept of "Torah" or revelation that
contributes to Talmudic Law.
b.
The "Written Torah" generated comment and explanation, and the oral
tradition of commentary became an expansion on the Torah called the "Oral Torah."
2.
Mishnah: Oral Torah, approximately 70 B.C. through 200 A.D.. a.
Oral tradition which generated a written record compiled over time.
b.
The Mishnah itself generated comment, and this second set of expositions
was recorded on two occasions in the Jerusalem and Babylonian Talmuds.
3.
Jerusalem Talmud:  approximately 400500 A.D..
4.
Babylonian Talmud:  approximately 600700 A.D..
5.
There are some additional portions of the Talmud found in the Tosefta and
Midrashe Halakhah as well. Consider that at the time of the writing of the two
Talmud, almost two millennia of legal commentary had passed.
6.
Commentaries and Restatements:  During the middle ages, commentaries
continued to be promulgated, most notably that of Maimonides (a.k.a. Rabbi Moses Ben Maimon) which is still considered one of the most influential. a.
 Maimonides (12th Century) was a scholar, physician, and philosopher
whose works (legal, religious, medical, and scientific) were influential
throughout the Jewish and Arab communities as well as on later European
culture and traditions as well. For example, Maimonides had a great
influence on St. Thomas Aquinas.
b.
Responsa: written advice regarding application of Talmudic Law.
B.
Influential on later traditions (e.g., Greek, Roman and Islamic).
C.
General sense of obligation to God and to act towards others in accordance with
God's will.


## Ix. Hindu Tradition

A.
One of the oldest remaining legal traditions.  Hinduism is also a religion, a way of
life, which includes much outside of the law (e.g., how to engage in politics).
1.
Four books of Veda (= to see), approximately 2000 B.C..
a.
 Revelations essential to Hindu way of life.
b.
Brahmans taught Vedas from memory, using Sutras, which were chains of
verbal maxims.
2.
Sastras = texts/poetry, including law and religious observance (200 B.C. - 400
A.D.).
3.
Commentaries and Digests (700 - 1700 A.D.).
B.
Private/religious works of law without judicial or legislative foundation, applicable to
all Hindus worldwide (e.g., India, Pakistan, Burma, Singapore, Malaysia, Tanzania, Uganda, and Kenya). 1.
Complex, hierarchical structure of appeals.
2.
Much Hindu teaching outside law books about how to live a life, e.g., politics
(arthasutras/arthasastras) and  pleasure (kamasutras/kamasastras).

C.
Dharma infuses Hindu law.
1.
Dharma = specific, individual sense of obligation to society, to do what is just and what is right (righteousness); it also assigns us a place in life (Varna =
caste) and specific obligations in course of living that life.


a.
The word *dharma* (Sanskrit; "" in the Devanagari script) or dhamma

(Pali) is used in most or all philosophies and religions of Indian origin, Dharmic faiths, namely Hinduism (Sanatana Dharma), Buddhism, Jainism, and Sikhism. It occurs first in the Vedas, in its oldest form as
dharman. It is difficult to provide a single concise definition for "Dharma"; the word has a complex history and an equivalently complex set of meanings.
2.
One's Dharma and caste are dictated by one's past Karma (good or bad, including past lives). a.
In law, there is no 5th class of untouchables, though popular conceptions of
untouchables translate into Sudras.
b.
With the passage of time, caste acquired significance as indicative of
social status arising by virtue of birth only.

c.
The current Indian Constitution prohibits discrimination on the basis of caste, which are made up of Brahmans (teachers), Kshatriya (warriors), Vaishyas (traders), and Sudras (servants).
3.
Failure to comply with Dharma results in accumulating bad Karma, which must
be repaid in future lives (e.g., lower caste).

## X.  Islamic Tradition

A.
 Background.
1.
Roots in pre-Islamic Arab society.
2.
Goal was not to establish a new legal order, but  to teach people what to do in
life.

B.
 Definitions.
1.
Islam:  "Submission or surrender to Allah's will."
2.
Qadi: Islamic Judge.
3.
Sharia: "The path to follow God's Law."
4.
Fiqh: The science of understanding and interpreting legal rulings (Islamic jurisprudence).
C.
 General Principles.

1.
No separation of church and State.
2.
Most Muslim States have a bifurcated legal system:

a.
Civil laws applicable to Muslims and non-Muslims.
b.
Sharia applicable to Muslims only.
D.  The role of Judges.
1.
For serious crimes, there are distinct punishments.
2.
For less serious crimes, judges are free to create new options and ideas to
address the issue
3.
Not bound by precedent and rules inherent in the Common Law system.  More
freedom/latitude than Civil Law judges.

## E. Sharia Law.

1.
Holistic approach to guide the individual in most daily matters.
2.
Controls all public and private behavior including personal hygiene, diet, sexual
conduct, child rearing, prayers, fasting, charity, and other religious matters.
3.
Elements of Sharia Law. a.
 The Qur'an. Primary source.  No appeal.
b.
 Sunna. i.
Teachings of the Prophet Mohammed not explicitly found in the
Qur'an.

ii.
Sunna is recorded in the hadith.


iii.  *Isnad* is the chain of reporters who produced the hadith.

c.
 Ijma. Consensus of religious scholars (Ulamas) on subjects not found
explicitly in the Qur'an or the Sunna.
d.
 Qiyas. New cases or case law (application by analogy).
e.
Other written works.
i.
The New Testament.
ii.
Legal discourses from Civil and Common Law jurisdictions.
4.
Classification of Hadith.

a.
According to the reference to a particular authority
b.
According to the links of Isnadinterrupted or uninterrupted.
c.
According to the number of reporters involved in each stage of Isnad.
d.
According to the nature of the text and Isnad.
e.
Overall Classifications of Hadith:


i.
Sahih: Sound. One cannot question the rulings of the Qur'an and
sahih hadith

ii.
Hasan: Good. The source is known and its reporters are
unambiguous.


iii.  Da'if: Weak.  Not to the level of hasan, usually because of a
discontinuity in the Isnad, or one of the reporters is unreliable.
iv.  Maudu': Fabricated. A hadith whose text goes against the
established norms of the Prophet's sayings, or its reporter is a liar.
5.
 Crimes.
a.
Hadd Crimes.  Crimes against God's Law, the most serious of all crimes. i.
Found by an exact reference in The Qur'an.
A.  A Specific act.

B.
A Specific punishment.
ii.
No plea bargaining.
iii.
No reduced punishment.

iv.  Examples: (* Specific punishment listed in the Qur'an.).
A.
 *Murder.
B.
*Apostasy from Islam.  Making war upon Allah and his
messengers.
C.
 *Theft.
D.
 *Adultery.
E.
Defamation.  False accusation of Adultery or Fornication.
F.
 Robbery.
G.
 Alcohol-drinking.
v.
Level of Proof: Confession, or a minimum of two witnesses.
vi.  If any doubt; treat as a *Ta'zir* crime. vii.  Mitigation.

b.
Ta'zir Crimes. i.
Crimes against society.

ii.
Ta'zir crimes can be punished if they harm the societal interest.

iii.  The assumption is that a greater "evil" will be prevented in the future
if you punish the offender now.
iv.  Historically not written down or codified; now set by parliament in
some countries (Egypt).
v.
Absent codification, judges are free to choose punishment they think will help the offender.
vi.  Examples of crimes:
A.
 Bribery.
B.
Selling defective products.
C.
 Treason.
D.
 Usury.
E.
 Selling pornography.
vii.  Examples of punishments:
A.
 Counseling.
B.
 Fines.
C.
Public or private censure.
D.  Seizure of property. E.
 Confinement.
F.
 Flogging.
c.
Qisas Crimes. i.
A crime of retaliation.

ii.
Victim (or victim's family) has a right to seek retribution or
retaliation.


iii.  Examples of crimes:

A.  Murder (Premeditated and non-premeditated).
B.
Premeditated offense against human life, short of murder.
C.
Murder by error.

D.  Offenses by error against humanity, short of murder.
iv.
Punishments. Sought, in most cases, by the victims family
A.  *Diya (*Blood money).
B.
 Public execution

1.
Traditionally carried out by the victim's family.
2.
Now carried out by the government.
C.
 Pardon.
6.
 Criminal Cases.
a.
Although all ostensibly are based on the Qur'an, handling of cases can
vary between different schools of thought.
b.
 Sunni Legal Schools:
i.
 Hanafi.
A.  The oldest school of law. B.
Founded in Iraq around 767.
C.
The most flexible of the four schools.
D.  Heavy emphasis on analogy. E.
Turkey, Afghanistan, India, and China.
ii.
Maliki.

A.  Founded in Medina around 795.
B.
Emphasis on the relevance and authority of traditions of the
Prophet and first Muslim community at Medina.
C.
Incorporated local customs and traditions into Sharia.

D.  North Africa, Upper Egypt, and the Sudan.
iii.
Shafi'i.

A.  Founded around 810. B.
 Apply prophetic traditions; yet apply a rigorous rational
criticism to them. 1.
Verify every link in the chain of transmission.
2.
Closely scrutinize the transmitters/reporters.

C.
Lower Egypt, southern India, Indonesia, and Malaysia.
iv.
 Hanbali.
A.  Strictly the Qur'an and verifiable tradition of the Prophet. B.
Rejected both reason and community consensus as the bases
for legal rulings.
C.
Saudi Arabia (Wahhabis).

## Xi. Asian Tradition

A.
 Overview.
1.
Asia has historically included other legal traditions (customary, Talmudic,
Islamic, Hindu), and is now picking and choosing from civil and common law
sources.
2.
Some authors claim the Asian Tradition to be a misnomer today, due to
influence of colonization and modernization.3

a.
Common Law (UK colonies): India, Malaysia, Singapore, and Brunei.
b.
Civil Law (French and Dutch colonies):  Indochina (Burma, Cambodia, Laos, Malaysia, Vietnam), and Indonesia.
c.
Other Asian States chose to adopt systems based on Civil Law:  China,
Japan, and Thailand.
d.
U.S. law also had influence on Philippines and Japan, due to pre- and post- World War II occupation.


## B. Characteristics

1.
Confucianism, Buddhism, Shintoism, and Taoism all have dim views of formal
law.
2.
Important issues regulated more by Persuasive, Informal Traditions, and Social
Harmony (Li) than by Obligatory, Formal Laws, and Sanctions (Fa).

3.
Fa focuses on penal and administrative law.
4.
Li focuses on everything else (including "non-legal" issues).  Belief that
business relations are best not reduced to writing and should be seen as ongoing, harmonious relationships of mutual advantage.  For example, an exemplary person seeks harmony vs. agreement on immediate detail; a small person does the opposite
5.
Emphasis on Informal Dispute Resolution.
6.
Legal Maxims:

a.
"Win a lawsuit and lose a friend."
b.
"The more laws are promulgated, the greater the number of thieves."
c.
"Litigation ultimately ends in disaster."


## Xii. Socialist Tradition

A.
 Overview. Very few comparative law texts still refer to the "socialist tradition,"
which has all but died.4

B.
Fairly recent tradition, that mostly dissolved with disintegration of legal order of the
former Soviet Union.
C.
Only survives in partial form in communist regimes (Cuba, North Korea, and
Vietnam).
D.  Public law subsumes traditionally private law fields (e.g., bankruptcy, contracts,
property, commercial law, torts).
E.
Intense reliance on formal law, enforced by the communist party, e.g., judicial
decisions of "independent" judges are subject to party control and revision.

## Xiii. Combined Systems


A.  Many countries have combined, or mixed, systems.  For example, UK has a Common
Law system, as do its former colonies, including the U.S., Canada, and Australia.  But
the U.S. state of Louisiana is a blend of Civil Law and Common Law, as is the
Canadian province of Quebec, both due to the influence of French Civil Law.  Most of Eurasia and Central and South America are Civil Law countries, but Guyana is a
blend of Common Law and Civil Law due to British rule from 1796 until 1966. Much of the rest of the world is a blend of various legal traditions.  Almost all of the
Islamic legal systems are a blend of Islamic and either Civil Law, Common Law, or Tribal Law.

4 Id.

B.
 Two main categories:
1.
Mixture of civil law and common law systems (e.g., Botswana, Guyana,
Lesotho, Namibia, the Philippines, Quebec, Scotland, South Africa, Sri Lanka, Swaziland, and Zimbabwe.  Consider also the European Union).
2.
Mixture of civil law and religious legal systems (Algeria, Egypt, Indonesia, Iran, Iraq, and Syria).

## For Further Reading



A.
 WERNER MENSKI, COMPARATIVE LAW IN A GLOBAL CONTEXT: THE LEGAL SYSTEMS
OF ASIA AND AFRICA (2nd ed., 2006).


B.
 H. PATRICK GLENN, LEGAL TRADITIONS OF THE WORLD: SUSTAINABLE DIVERSITY IN
LAW (2nd ed., 2004).


C.
 DANIEL C.K. CHOW, THE LEGAL SYSTEM OF THE PEOPLE'S REPUBLIC OF CHINA (2003).


D.
 VIVIAN G. CURRAN, COMPARATIVE LAW: AN INTRODUCTION (2002).


E.
 STEFAN ALBRECHT A. RIESENFELD, WALTER J. PAKTER, COMPARATIVE LAW CASEBOOK (2001).


F.
 MARY ANN GLENDON, MICHAEL W. GORDON, AND PAOLO G. CAROZZA,
COMPARATIVE LEGAL TRADITION (2nd ed., 1999).


G.
 DALE F. EICKELMAN AND JAMES PISCATORI, MUSLIM POLITICS (1996).


H.
 J.H. MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL
SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA (2nd ed., 1985).


I.
 M. CHERIF BASSIOUNI, THE ISLAMIC CRIMINAL JUSTICE SYSTEM (1982).


J.
 CENTER FOR LAW AND MILITARY OPERATIONS, RULE OF LAW HANDBOOK: A
PRACTITIONER'S GUIDE FOR JUDGE ADVOCATES, latest edition.

## - Introduction To Public International Law

-


History of the Law of War
-


Framework of the Law of War
-


Legal Bases for the Use of Force
-


GC I: Wounded and Sick in the Field
-

GC III: Prisoners of War
-


GC IV: Civilians on the Battlefield
-


GC IV: Occupation and Post-Conflict Governance
-


Means and Methods of Warfare
-


War Crimes and Command Responsibility
-


Human Rights
-


Comparative Law
-

Index